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The opinion of the court was delivered by
Prager, J.:
This is a consolidation of three appeals by three electrical utilities from orders of the State Corporation Commission (KCC) granting in part and denying in part the requests of the utilities for rate increases due to the commercial operations of the Wolf Creek Generating Station (Wolf Creek) near Rurlington, Kansas. The three utilities are Kansas Gas and Electric Company (KGE), Kansas City Power and Light Company (KCPL), and Kansas Electric Power Cooperative, Inc. (KEPCo). The KCC is the appellee. There are also a number of intervenors, including the Kansas Attorney General and various individuals and organizations representing interested citizens and the public.
Historical background
The legal issues presented in this case are not peculiar to Kansas but are the natural result of the national controversy over the construction of nuclear power plants which has developed over the past thirty years. On December 8,1953, in his address to the United Nations, President Dwight D. Eisenhower announced his “Atoms for Peace” program. Among other subjects, he spoke of using the atom “to serve the peaceful pursuits of mankind.” He spoke of providing abundant electrical energy in the power-starved areas of the world and envisioned the cooperation of the nations of the world to serve the needs rather than the fears of mankind. The possibility that nuclear energy could be used to improve rather than to destroy the world excited most Americans. Today, three decades later, the future of nuclear power is uncertain and the national debate has not been resolved.
In 1953, the Atomic Energy Commission, an agency created by Congress to supervise atomic energy and its development, allocated funds for a demonstration nuclear plant at Shippingport, Pennsylvania. The reactor used in that plant was very small and, by modern standards, its output of electricity was very modest. During the 1960s, several private companies developed nuclear reactors and marketed them to utilities at prices competitive with conventional generators. Between 1965 and 1975, the nuclear industry was perhaps the fastest growing major industry in the United States.
During the 1960s, KGE used natural gas to generate its electricity. Some time during the late 1960s, KGE was notified by its natural gas supplier that the utility’s access to natural gas eventually would end. At that time, KGE was experiencing a growth in demand for electricity of approximately seven percent per year. KCPL, an electrical utility in northeast Kansas, was experiencing the same growth in demand. Both utilities, like many others around the country, faced the decision of whether to generate electricity from coal or from natural gas or from nuclear power. Studies were commissioned which suggested that nuclear power rather than coal or natural gas was the most cost efficient and environmentally sound alternative for expansion of electrical capacity. As a result, KGE and KCPL, and later KEPCo, decided to take the nuclear route. KGE and. KCPL each took 47% shares in the project, and KEPCo took a 6% share.
In January of 1977, the Nuclear Regulatory Commission (NRC), the successor to the Atomic Energy Commission, issued a temporary work authorization permit for the construction of a nuclear facility on Wolf Creek in Coffey County. In May of 1977, major construction work began. It was estimated in February of 1973 that the cost of constructing the nuclear plant at Wolf Creek would be in the neighborhood of $525,000,000. The ultimate cost of construction amounted to about $3,000,000,000, almost a sixfold increase.
It is clear that three unforeseen events occurred during the mid-1970s which affected the relative attractiveness of the nuclear option and brought about a tremendous increase in the cost of construction. After several nuclear power plants were con structed, a series of accidents occurred which intensified the debate over the use of nuclear energy. At the Three Mile Island accident in March 1979, a mechanical malfunction, compounded with human errors, brought the Three Mile Island nuclear reactor close to a meltdown. This required the utilities to increase their efforts to improve plant safety. New safety equipment, which the NRC required, added millions of dollars to the costs of nuclear plant construction at Wolf Creek and elsewhere.
Another important factor was the change in “energy economics” that occurred during the 1970s. When OPEC in 1973-74 raised the price of oil, making nuclear power even more attractive, orders for nuclear reactors increased. A second oil shock occurred in 1979 when, following the overthrow of the Shah of Iran, the price of oil reached $40 per barrel. The American people responded to the oil crisis and an unexpected and dramatic decline in the demand for oil followed. The demand for energy also diminished. Electrical utilities, which had already implemented plans to substantially increase their supply of electricity, now discovered that the supply greatly exceeded the demand for electricity. Some utilities responded to this new economic environment by canceling plans for additional generating facilities including scheduled nuclear plants, some of which were then under construction.
A third unforeseen development which the utilities faced in the construction of nuclear plants was the increased inflation of the 1970s, the effect of which was to increase substantially the cost of building a nuclear plant. By adding millions to interest costs, cost overruns strained the cash flow positions of some utilities and thus impeded the ability of some utilities to raise capital to complete these projects. All of these unforeseen changes affected the Wolf Creek project. The project was delayed both by the post-Three Mile Island safety standards and construction problems which developed at the site. Although the original plans called for the Wolf Creek plant to start producing electricity in April 1981, production did not commence until September 1985. There is an excellent discussion of this historical background in an article by Professor Robert H. Jerry, II, entitled Introduction to Wolf Creek Symposium, 33 Kan. L. Rev. 419 (1985).
As the time for commencement of operations at the Wolf Creek plant approached, the three utilities involved in this case filed petitions with the KCC requesting the granting of appropriate electrical rates for the electricity to be produced. At this same time, regulatory agencies in other states were faced with the same or similar problems. In some states, state regulatory agencies had to determine whether the costs of an abandoned nuclear plant should be included in an electrical utility’s rate base. Where a nuclear plant had been completed and placed in operation, the state regulatory agency had the problem of determining whether the inflated construction costs of a nuclear facility had to be included in the rate base in a manner which would financially hurt the ratepayers, the consumers, and the general public. It is this same basic problem which was faced by the KCC in the case now before us.
Constitutional and Legal Principles Applicable in Rate-making Decisions.
Before turning to the specific issues raised in this case, it would be helpful to discuss some of the general constitutional and legal principles applicable to rate-making decisions by state regulatory agencies. An important question to be considered is what a regulatory agency should seek to accomplish in such a case. The leading cases in this area clearly indicate that the goal should be a rate fixed within the “zone of reasonableness” after the application of a balancing test in which the interests of all concerned parties are considered. In rate-making cases, the parties whose interests must be considered and balanced are these:
(1) The utility’s investors vs. the ratepayers;
(2) the present ratepayers vs. the future ratepayers; and
(3) the public interest.
The leading case in this area which has been followed by various state regulatory agencies is Power Comm’n v. Hope Gas Co., 320 U.S. 591, 88 L. Ed. 333, 64 S. Ct. 281 (1944). The issue presented in Hope was whether there was a requirement of constitutional dimension that utility rates set by regulatory authorities be set at sufficiently high levels to guarantee, irrespective of countervailing consumer interests, the continued financial integrity of the utilities concerned. Stated in another way, is a public utility entitled in every case to a reasonable return on its capital investments as a matter of law without regard to the interests of the ratepayers and consumers? In Hope, the United States Supreme Court addressed the considerations to be taken into account by the Federal Power Commission in setting “just and reasonable” rates for natural gas companies, as required by § 4(a) of the Natural Gas Act of 1938, 15 U.S.C. § 717 (1982). In applying the standard requiring “just and reasonable” rates, the Hope court emphasized that the focus of inquiry is properly upon the end result or “total effect” of the rate order, rather than upon the rate-setting method employed. The court described the rate-setting process as a balancing process involving the weighing of certain enumerated interests of the consumer and of the investor. The court stated that the rate-making process involves a balancing of the investor and the consumer interests, and that public utility regulation does not insure that the business shall produce net revenues.
The decision in Hope was followed by Permian Basin Area Rate Cases, 390 U.S. 747, 770, 20 L. Ed. 2d 312, 88 S. Ct. 1344, reh. denied 392 U.S. 917 (1968), which held that the “just and reasonable” standard of the Natural Gas Act coincides with the applicable constitutional standards and any rate selected by a regulatory commission within the “broad zone of reasonableness” cannot properly be attacked as confiscatory.
There is ah excellent discussion of these cases in Pennsylvania Elec. v. Pennsylvania Pub. Util., _ Pa. _, 502 A.2d 130 (1985), where the Supreme Court of Pennsylvania had before it an appeal in an electrical utility rate case involving a nuclear generating plant which had been so severely damaged as to render it no longer useful in the public service. The question was whether the costs associated with the damaged nuclear plant should be removed from the rate base of the utilities. The court concluded that the Pennsylvania commission was not precluded from eliminating from the utility’s rate base all costs associated with the unit of the nuclear power plant involved in a near meltdown or in determining that another unit which had previously been shut down for refueling and which remained shut down by order of NRC likewise was no longer useful in public service because its return to service was not imminent or certain. The court held that the decisions of the United States Supreme Court in Hope and Permian Basin Area Rate Cases did not establish, as a constitutional requirement, that the end result of a rate-making body’s adjudication must be the setting of rates at a level that will, in any given case, guarantee the continued financial integrity of the utility. Rather, Hope requires only that the regulatory authority balance competing consumer and investor interests to determine just and reasonable rates providing a return on used and useful property.
The Pennsylvania Supreme Court noted In re: Jersey Central Power & Light Co., No. A-162-81T2 (July 28, 1983), cert. den. 95 N.J. 217, 470 A.2d 433 (1983), which involved similar facts and where a similar result was reached. An appeal was taken to the United States Supreme Court which was subsequently dismissed for want of a substantial federal question. Jersey Central Power & Light Co. v. Board of Public Utilities of New Jersey, 466 U.S. 947, 80 L. Ed. 2d 533, 104 S. Ct. 2146 (1984).
This balancing concept is supported by other federal court decisions. In Smyth v. Ames, 169 U.S. 466, 544, 42 L. Ed. 819, 18 S. Ct. 418 (1898), the Supreme Court stated that it cannot be^ admitted that a railroad corporation maintaining a railroad under the authority of the state may fix its rates with a view solely to its own interests, and ignore the rights of the public. Washington Gas Light Co. v. Baker, 188 F.2d 11, 19 (D.C. Cir. 1950), holds that the valuation included in the rate base must meet the test of justness and reasonableness to the consumer as Well as to the investor. In FPC v. Memphis Light, Gas & Water Div., 411 U.S. 458, 474, 36 L. Ed. 2d 426, 93 S. Ct. 1723 (1973), the Supreme Court expressly recognized that rates cannot be determined just and reasonable unless consumer interests are protected. In addition, a number of state courts have held that utility rates must not be set so high as to constitute an unreasonable burden on the ratepayers. State, Ex. Rel. Allain v. Miss. Public Serv. Com’n, 435 So. 2d 608, 624 (Miss. 1983); New England Tel. & Tel. Co. v. Public Utilities, 390 A.2d 8, 30 (Me. 1978); Central Me. Power Co. v. P. U. C., 150 Me. 257, 278, 109 A.2d 512 (1954).
The Supreme Court of Kansas has likewise recognized and applied the “zone of reasonableness” concept in Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963). Syllabus ¶ 17 states as follows:
“There is an elusive range of reasonableness in calculating a fair rate of return. A court can only concern itself with the question as to whether a rate is so unreasonably low or so unreasonably high as to be unlawful. The in-between point, where the rate is most fair to the utility and its customers, is a matter for the State Corporation Commission’s determination.”
At page 58 of the opinion, the court recognizes the decision of the United States Supreme Court handed down in Power Comm’n v. Hope Gas Co., 320 U.S. 591, which is discussed heretofore. See also Midwest Gas Users Ass’n v. Kansas Corporation Commission, 5 Kan. App. 2d 653, 659, 623 P.2d 924, rev. denied 229 Kan. 670 (1981). All of these cases clearly support the general principle that a state regulatory agency, in setting a rate for a public utility, must have as its goal a rate fixed within the “zone of reasonableness” after an application of a balancing test in which the interests of all concerned parties are considered.
Kansas Statutory Provisions Applicable to Rate-making Cases
. Under the constitutional separation of powers doctrine, the regulation of public utilities is legislative in nature. The legislature created the Kansas Corporation Commission and granted it full and exclusive authority and jurisdiction to supervise, control, and regulate the public utilities of this state and, when acting in the exercise of its delegated powers, the Commission is not a quasi-judicial body. Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660 (1968); Midwest Gas Users Ass’n v. Kansas Corporation Commission, 5 Kan. App. 2d 653.
Thus, public utility rate making is a legislative function, whether it is regulated by an administrative body or by the legislature itself. Prior to 1984, the legislature empowered the KCC by broad, non-specific statutes to exercise the rate-making function. By K.S.A. 66-101, the State Corporation Commission was given the authority to supervise and control public utilities and was empowered to do all things necessary and convenient for the exercise of such authority. K.S.A. 66-141 (Weeks), now K.S.A. 66-101g, provided that the statutory provisions granting authority, power, and jurisdiction to the Commission shall be liberally construed. K.S.A. 66-107 (Weeks), now K.S.A. 66-101b, provided the KCC with authority to require a public utility to furnish reasonably efficient and sufficient service and to establish “just and reasonable” rates.
During the 1984 legislative session, the Kansas legislature was faced with the controversy over the Wolf Creek power plant. With estimates predicting that electric power bills would in crease from 40% to 110% when the plant became operational, the demand from consumer groups, the media, and even large business users to “do something” about Wolf Creek had created a political imperative. The result was the passage of House Bill 2927, codified as K.S.A. 66-128 through 66-128k, which substantially broadened and made more specific the statutory authority of the Commission in rate-making cases to address such issues as excess capacity, management inefficiency, and imprudence in the acquisition, construction, or operation of a generating plant. For an excellent discussion of the 1984 legislation see the article by Robert Vancrum, entitled The Wolf Creek Excess Cost—Excess Capacity Bill, 33 Kan. L. Rev. 475 (1985).
K.S.A. 66-128 authorizes the KCC to determine the reasonable value of “all or whatever fraction or percentage of the property” of any public utility which is used and required to be used in its services to the public within the State of Kansas whenever the Commission deems the ascertainment of such value necessary in order to enable the Commission to fix fair and reasonable rates. K.S.A. 66-128a provides that nothing in K.S.A. 66-128b through 66-128i shall be construed to limit the authority of the KCC to review and evaluate the efficiency or prudence of any actions, including acquisition of excess capacity, or operating practices of any public utility for the purpose of establishing fair and reasonable rates. K.S.A. 66-128b provides that the KCC may require a public utility to defer the inclusion of all or any portion of the reasonable value of property determined not currently used and required to be used for public service and may require the phase-in of such value over any period of time and in such increments as it may determine to be appropriate.
K.S.A. 66-128c provides that the KCC, in determining the reasonable value of property under 66-128, shall have the power to evaluate the efficiency or prudence of acquisition, construction, or operating practices of that utility. In the event the KCC determines that a portion of the costs of acquisition, construction, or operation were incurred due in whole or in part to a lack of efficiency or prudence, or were incurred in the acquisition or construction of excess capacity, the Commission shall have the power and authority to exclude those portions of the costs from the revenue requested by the utility. This section defines “excess capacity” to mean any capacity in excess of the amount used and required to be used to provide adequate and reliable service to the public within the State of Kansas as determined by the Commission. The Commission is empowered, within its discretion, to prohibit or reduce the return on all costs which were incurred in constructing, maintaining or operating excess capacity.
K.S.A. 66-128e authorizes the KCC to exclude from the value of utility property for rate-making purposes that portion of the costs attributable either to investment in excess capacity which was incurred due to lack of prudence in facility planning or lack of prudence in plant acquisition, construction, or operation. However, a finding of lack of prudence in capacity planning for a facility which in whole or in part represents excess capacity shall not be made by the KCC when a siting permit authorizing the construction of the facility has been issued under K.S.A. 66-1,162. It should be noted that, in the present case, there was no siting permit issued for the construction of Wolf Creek.
K.S.A. 66-128g is devoted to a recitation of the various factors to be considered by the Commission in making the determination of “prudence” or lack thereof in determining the reasonable value of electric generating property. K.S.A. 66-128g provides as follows:
“66-128g. ... (a) The factors which shall be considered by the commission in making the determination of‘prudence’ or lack thereof in determining the reasonable value of electric generating property, as contemplated by this act shall include without limitation the following:
“(1) A comparison of the existing rates of the utility with rates that would result if the entire cost of the facility were included in the rate base for that facility;
“(2) a comparison of the rates of any other utility in the state which has no ownership interest in the facility under consideration with the rates that would result if the entire cost of the facility were included in the rate base;
“(3) a comparison of the final cost of the facility under consideration to the final cost of other facilities constructed within a reasonable time before or after construction of the facility under consideration;
“(4) a comparison of the original cost estimates made by the owners of the facility under consideration with the final cost of such facility;
“(5) the ability of the owners of the facility under consideration to sell on the competitive wholesale or other market electrical power generated by such facility if the rates for such power were determined by inclusion of the entire cost of the facility in the rate base;
“(6) a comparison of any overruns in the construction cost of the facility under consideration with any cost overruns of any other electric generating facility constructed within a reasonable time before or after construction' of the facility under consideration;
“(7) whether the utility having an ownership interest in the facility being considered has provided a method to ensure that the cost of any decommissioning, any waste disposal or any cost of clean-up of any incident in construction or operation of such facility is to be paid by the utility;
“(8) inappropriate or poor management decisions in construction or operation of the facility being considered;
“(9) whether inclusion of all or any part of the cost of construction of the facility under consideration, and the resulting rates of the utility therefrom, would have an adverse economic impact upon the people of Kansas;
“(10) whether the utility acted in the general public interest in management decisions in the acquisition, construction or operation of the facility;
“(11) whether the utility accepted risks in the construction of the facility which were inappropriate to the general public interest to Kansas;
“(12) any other fact, factor or relationship which may indicate prudence or lack thereof as that term is commonly used.
“(b) The portion of the cost of a plant or facility which exceeds 200% of the ‘original cost estimate’ thereof shall be presumed to have been incurred due to a lack of prudence. The commission may include any or all of the portion of cost in excess of 200% of the ‘original cost estimate’ if the commission finds by a preponderance of the evidence that such costs were prudently incurred. As used in this act ‘original cost estimate’ means:
“(1) For property of an electric utility which has been constructed without obtaining an advance permit under K.S.A. 60-1,159 et seq., and amendments thereto, the ‘definitive estimate’; and
“(2) for property of an electric utility which has been constructed after obtaining an advance permit under K.S.A. 66-1,159 et seq., and amendments thereto, the cost estimate made by the utility in the process of obtaining the advance permit.”
The other provisions enacted in 1984 are not material in this case and need not be mentioned.
In 1985, the legislature adopted additional statutory amendments to clarify the Commission’s authority, power, and jurisdiction to supervise and control public utilities. See K.S.A. 66-101 through 66-101h. These various statutes grant to the KCC broad authority to do all things necessary and convenient for the establishment of just and reasonable rates in order to maintain reasonably sufficient and efficient service from electric public utilities. The Commission is given powers to investigate and to hold hearings. K.S.A. 66-101g declares that the statutory powers shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of the act are expressly granted to and conferred upon the Commission. It should be noted that all of these statutory amendments passed in 1984 and 1985 were in full force and effect at the time the KCC orders were entered in the three cases now before us on this appeal.
In their briefs, the utilities challenge the constitutionality of these statutes for a variety of reasons. They argue that K.S.A. 66-128 et seq. are unconstitutionally vague because an ordinary person exercising ordinary common sense could not understand their provisions. We find no merit to this contention. The thrust of the KCPL argument claiming vagueness is that “prudence” is not defined anywhere in the statutes. In our judgment, the statutory provisions are as definite and clear as reasonably could be expected in a statute of this type. The Kansas statutory provisions are much more definite and certain than statutes involving the same subject matter found in other jurisdictions. We also note that K.S.A. 66-128g(12), in effect, states that “prudence or lack thereof” means as that term is commonly used. Rlack’s Law Dictionary 1104 (5th ed. 1979) defines “prudence” as “[c]arefulness, precaution, attentiveness and good judgment.”
The utilities also attack K.S.A. 66-128 et seq. as an unlawful delegation of legislative authority because the statutory provisions do not contain reasonably clear standards to control the KCC in the exercise of its authority. It is well established in Kansas that a delegation of legislative authority to an administrative body must fix a reasonably clear standard which governs the exercise of that authority. State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957); State, ex rel., v. Hines, 163 Kan. 300, 182 P.2d 865 (1947).
In this case, the statutes enacted in 1984 and 1985 authorize the Commission to apply certain prescribed standards and requirements in setting the rates for the various utilities. The KCC’s expertise in the field is vast, and the Commission must, of necessity, have considerable discretion in order to regulate utilities in the public interest. The statutes also contain a protection against arbitrary action by the KCC. The KCC is required to state expressly its findings of fact and conclusions of law. Such a provision prevents arbitrary action and facilitates judicial review, thus insuring a lawful exercise of legislative authority.
One other matter should be noted in regard to the determination of rate-making cases. In arriving at its decision, the KCC, of necessity, must be afforded a wide discretion in the methodology to be utilized in approaching the complex problems involved. The field of public utility regulation is a highly complex field and requires a great amount of expertise in arriving at a result which is fair and just to all interested parties.
In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, Syl. ¶ 3, we find the following language:
“A public utility has no vested right in any one particular formula or method, and the State Corporation Commission is not bound to use any particular formula, or combination of formulae, in valuing a public utility’s property for rate making purposes. The State Corporation Commission should receive and consider all evidence which has a relevant bearing on reasonable value and then determine what formula, or combination of formulae, it believes should be used under the facts and circumstances of the case to arrive at a reasonable value of the property for rate making purposes.”
See also Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 512, 561 P.2d 779 (1977).
Scope of Review
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 limits judicial review of an order by the commission to determining whether the order is ‘lawful’ or ‘reasonable.’ Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. 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. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). 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. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). 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. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).”
These same rules were recognized in Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 128, 650 P.2d 747 (1982), and also by this court in Oilfield Fluid Motor Carriers v. Kansas Corporation Comm’n, 234 Kan. 983, 986, 677 P.2d 982 (1984).
In 1984, the Kansas legislature codified these principles when it enacted the “Act for Judicial Review and Civil Enforcement of Agency Actions” contained in K.S.A. 77-601 through 77-627. K.S.A. 77-603 makes the act applicable to all agencies not specifically exempted by statute. K.S.A. 77-621 specifically sets forth the scope of review of administrative decisions by the courts and provides as follows:
“77-621. Scope of review, (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.
“(b) The court shall make a separate and distinct ruling on each material issue on which the court’s decision is based.
“(c) The court shall grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act: or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.
“(d) In making the foregoing determinations, due account shall be taken by the court of the rule of harmless error.”
K.S.A. 66-118a provides that the Court of Appeals shall have exclusive jurisdiction of proceedings for review of an order or decision of the State Corporation Commission arising from a rate hearing when a public utility is a necessary party. Here, the consolidated appeal was transferred from the Court of Appeals to the Supreme Court under the authority of K.S.A. 20-3018(c) and K.S.A. 20-3017.
Proceedings before the KCC
In 1979, when the problem of rapidly increasing construction costs of Wolf Creek became evident, a docket was created by the KCC for the purpose of initiating a general investigation of the projected costs so that data could be collected for use in rate cases which would be filed after the Wolf Creek facility was completed. In November of 1984, each of the three utilities filed an application requesting proposed rate increases to become effective at the time the Wolf Creek plant went into operation.
The magnitude of the rate increases sought was unprecedented in Kansas. KCPL suggested a phase-in of the increased rates over a four-year period. The first-year increase requested was in the amount of $45.3 million, a 25% increase. Over the phase-in period, a total increase of $110.6 million was sought for a 65% increase over current rates. KGE proposed a phase-in proposal seeking a 40% increase in the amount of $144.9 million in 1985 and four subsequent annual increases for a total of $373 million. The percentage increase in rates at the end of the phase-in period for KGE would be 106%, as opposed to a onetime 95% increase. KEPCo sought a 40% increase in its rates in the amount of $26.9 million annually.
In requesting the proposed rate increases, the utilities sought to recover their shares of various expenses for Wolf Creek, including operations and maintenance, fuel, and annual funding for decommissioning of the plant. Furthermore, the companies sought a return of the total construction costs of the Wolf Creek plant through annual depreciation expenses and, in addition, a return on the costs of construction at an overall rate of return.
The KCC held hearings on the applications for rate increases during the months of May, June, and July of 1985. The Commis sion heard the testimony of over 160 technical witnesses and admitted several hundred exhibits. The 58-volume transcript covers 17,830 pages. The Commission held 19 public hearings at various places in the companies’ service territories, hearing the testimony of 475 ratepayers. Rriefs were then submitted to the KCC by counsel for the utilities, the Commission staff, and various intervenors. On September 27, 1985, the KCC issued its order granting in part and denying in part the rate increases requested by the utilities. Motions for a rehearing were filed and heard. The original orders of the KCC were modified in certain respects and the balance of the motions were denied in November'1985. The utilities sought judicial review of the orders of the KCC in the Court of Appeals. The cases were subsequently transferred to the Kansas Supreme Court and consolidated into one appeal.
The overall effect of the KCC orders may be summarized as follows:
(1) The utilities received virtually all they requested as expenses to operate and maintain the plant and to decommission it at the end of its life.
(2) The KCC determined that a total of $183 million, or about 10% of the costs of construction of the Wolf Creek plant, was inefficiently and imprudently incurred. The utilities were denied both a recovery of and a return on that portion of the costs of the construction.
(3) The KCC allowed all of the remaining 90% of the Wolf Creek construction costs to be recovered through annual depreciation expenses over the expected life of the plant.
(4) Of that 90%, no current return or profit was permitted on approximately $944 million on the basis that a portion of the costs constituted excess physical capacity, because it was not used and required to be used to provide current services to the ratepayers. The disallowance for the excess physical capacity was allocated in the amount of approximately $716 million to the rate base of KGE and $228 million to the rate base of KCPL. As to KEPCo, the KCC found that it did not have excess physical capacity and, therefore, no deduction from its rate base was required. The excluded amounts will remain eligible in the future for a rate of return as the excess capacity is utilized to serve the ratepayers.
(5) Of the remaining 90% of capital costs which were held to be prudently incurred, the KCC disallowed the sum of approximately $266 million on the basis that it constituted excess economic capacity. The disallowance for excess economic capacity was allocated to reduce the rate base of KGE approximately $193 million and to reduce the rate base of KCPL approximately $73 million. No deduction was made for this factor from the rate base of KEPCo. The capital costs on which a return was disallowed were subject to increases in the future, if the economic value increases in comparison with other plants. Thus, the amounts excluded at the time of the order will remain eligible in the future for a rate of return to each utility.
(6) Although, as noted above, no return-was allowed on-t-hose -construction costs found to be imprudent or for the costs found to be excess physical capacity and excess economic capacity, the KGE and KCPL carrying costs will be recovered by being amortized over the life of the plant on a straight-line basis.
Stated simply, the utilities were not and will not be permitted to recover the 10% of the construction costs found to be imprudently incurred. The utilities are permitted to recover all of the 90% of the total construction costs found to be prudently incurred through annual depreciation expense over the expected life of the plant. The KCC set limitations on the right of the utilities to a return on that portion of the construction costs found to constitute excess physical capacity and excess economic capacity with the possibility of those costs being included in the rate base at some time in the future.
The three basic areas of dispute in this appeal arise from the deductions of those portions of the construction costs from the rate base of each utility found to be imprudent costs of construction, excess physical capacity, and excess economic capacity.
In connection with these areas of dispute, the utilities have raised many issues of law for the court’s consideration. We will discuss each of the basic areas of dispute separately.
Deduction of Imprudent Construction Costs from the Rate Base
The rate-setting approach for the KCC is divided into two phases — revenue required and rate design. By “revenue required” is meant the additional money, if any, that the company needs to meet its obligations and also to have an opportunity to earn a fair profit. Rate design is the process by which the revenue requirement will be spread over the various classes of customers. That process is not involved in this appeal.
In order to arrive at the revenue requirement, three factors must be carefully analyzed by the KCC:
(1) The rate base;
(2) the operating expenses; and
(3) the percentage rate of return to be applied to the rate base.
The basic issues presented in this case involve the determination of the rate base. The “rate base” may be defined as the dollar amount of a given utility’s investment in the plant and property “used and required to be used” in supplying the service that the utility has undertaken to furnish. The rate base is the valuation sought under the provisions of K.S.A. 66-128. The rate base includes items such as the value of generation and transmission facilities and rights-of-way, and equipment of all kinds. Ordinarily, discarded and abandoned property due for retirement is excluded from the rate base. It is the rate base on which the owners of the utilities have a right to earn a fair return. The rate base multiplied by the fair rate of return yields a sum in dollars that the KCC considers reasonable.
There are a number of methods which regulatory agencies use ' in determining tire rate base for a particular utility. The original cost of construction of a facility may be utilized but may be reduced where a portion of the cost is due to imprudence or unjustified expenses. See San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 47 L. Ed. 892, 23 S. Ct. 571 (1903). Another method used to establish the rate base is the determination of the fair or reasonable value of the property. K.S.A. 66-128 provides that the KCC shall determine the reasonable value of the property of the utility which is used and required to be used in its services to the public in order to enable the Commission to fix fair and reasonable rates. In State, ex rel., v. Telephone Co., 115 Kan. 236, 261, 223 Pac. 771 (1924), it was held that the original cost is not the measure of the rate base but rather the “going-concern value” of the plant. In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, as noted heretofore, it was held that the KCC is not bound to use any particular formula, or combination of formulae, in valuing a public utility’s property for rate-making purposes. Any evidence having a bearing on reasonable value may be considered, and the KCC may then use any formula or combination of formulae that it may believe necessary for arriving at a reasonable basis for rate-making purposes.
At the hearing before the KCC, a great deal of expert testimony was presented by the utilities showing that great efficiency and prudence was used by the contractor in the construction of the Wolf Creek plant. To the contrary, the staff of the KCC presented other competent experts who testified that a substantial portion of the construction costs was inefficiently and imprudently incurred. The findings of the KCC set forth this testimony in great detail. It would serve no useful purpose to restate the testimony of the various expert witnesses who testified on behalf of the parties. As noted heretofore, the KCC disallowed a total of approximately $183,000,000 or about 10% of the total cost of construction as costs which were imprudently incurred.
The KCC’s disallowance for imprudent construction costs consisted of three distinct quantifications:
(1) $37,961,400 of direct and associated indirect costs attributable to disallowed man-hour overruns;
(2) $244,561,400 of indirect and overhead costs attributable to disallowed schedule delays; and
(3) $450,000 of the fees paid to the primary contractor, Daniel International Corporation, for work which was not performed and which was performed by other contractors.
There is substantial, competent evidence in the record to support the disallowances in each of these categories. There was evidence from which the KCC could reasonably find that KGE and KCPL, as owners of the plant, were imprudent and inefficient in the manner in which they supervised the construction of the plant. We recognize, of course, that there was expert testimony to support findings of both imprudence on the one hand and prudent management control on the other. Perhaps if this court had the obligation and authority to determine this issue, it might have decided it differently. However, because there is substantial, competent evidence in the record to support the findings of the KCC as to imprudent construction costs, we are bound by those findings and cannot substitute our judgment for that of the Commission.
The utilities, however, raise a number of legal issues specifically relating to the finding of imprudent costs. They maintain that the KCC, in determining imprudent costs, applied an un reasonable standard of perfection rather than mere prudence, although they recognize that K.S.A. 66-128c afforded the Commission the power to evaluate the construction of Wolf Creek and to exclude construction costs incurred as the result of imprudence or mismanagement. They complain that there is no definition of prudence in the statutes.
In construing statutes, words and phrases should be construed according to context and approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984). As noted heretofore in this opinion, the word “prudence” has a common and ordinary meaning. The various factors listed in K.S.A. 66-128g(a) provide sufficient guidelines for determining prudence which obviates the need for a definition of the term.
The utilities complain that the KCC did not accept their evidence consisting of a comparative analysis of the construction costs and schedules at Wolf Creek with similar factors at other nuclear power plants constructed duringthe same period. The KCC rejected this evidence on the basis that the comparative analysis was incomplete, misleading, or irrelevant, and did not support the owners’ conclusions. This the KCC had aright to do.
The utilities argue that the KCC used hindsight in determining imprudence rather than considering performance as of the time construction was in progress. This contention is not supported by the record. We hold that the KCC did not determine the issue of imprudence solely on the basis of hindsight, but rather on the basis of substantial, competent evidence.
The owners attack K.S.A. 66-128g(b) as violative of due process because it creates a rebuttable presumption that construction costs of a plant or facility have been incurred due to a lack of prudence as to that portion of the total costs which exceeded 200% of the “original cost estimate.” Presumptions may be created by statute if there is a rational connection between the fact proved and the fact presumed. The test in this case is whether a logical inference of management imprudence can be drawn from evidence of total cost greater than 200% of the original cost estimate, or whether there is some justification in public policy for such an inference to be drawn. In our judgment, management imprudence can reasonably be inferred from the fact a particular project cost exceeded by more than 200% the definitive estimate. Other states by statute have imposed a cap or limitation on the construction costs of nuclear plants. Re Seabrook Unit No. 1, 63 P.U.R. 4th 673 (Conn. 1984.) We believe that the presumption is logical in the context of utility regulation, where the ratepayer normally reimburses the utility for its expenses. The fact that there is such a presumption does not determine the issue, for the KCC still has the duty to examine the reasonableness of the construction costs, which is exactly what the KCC did regarding the Wolf Creek costs in this case.
The utilities next maintain that K.S.A. 66-128c only authorizes the KCC to exclude the imprudent costs of construction from the revenue requested and not from the utility’s rate base. That statute provides, in substance, that the KCC, in determining the reasonable value of property under K.S.A. 66-128, shall have the power to evaluate the efficiency or prudence of acquisition, construction or operating practices of that utility. If inefficiency or imprudence is found, the KCC has the right to exclude all or a part of those costs from the revenue requested by the utility. As noted above, it is the rate base which must first be determined before an appropriate return may be allowed by a regulatory agency. The rate base is the major focal point of a rate proceeding. In order for the KCC to reduce a utility’s requested revenue increase by costs found to be inefficiently or imprudently incurred, it must, of necessity, reduce the rate base by the amount of the cost disallowance.
In the past, the Kansas courts have held that the exclusion of certain disallowances from the rate base is a discretionary function of the KCC. Kansas City Power & Light Co. v. KCC, 224 Kan. 86, 88, 578 P.2d 254 (1978); Kansas-Nebraska Natural Gas Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 674, 610 P.2d 121, rev. denied 228 Kan. 806 (1980).
KEPCo, in its brief, takes the position that the KCC decision disallowing imprudent construction costs in KEPCo’s rate base is unlawful on the basis that the Commission cannot make such a disallowance without finding KEPCo itself to be imprudent. KEPCo argues that the disallowance for imprudent construction costs cannot be attributed to KEPCo, because those cost overruns were imprudently incurred prior to its acquisition of a 6% ownership in the Wolf Creek plant. In its order, the Commission found as follows:
“20. The Commission finds that KEPCo should be held accountable for its proportional share of cost incurrence found to be imprudent notwithstanding the fact that many of -the costs found to be imprudent were incurred prior to the purchase of KEPCo’s six percent interest in 1981. The record appears clear that KEPCo did not analyze the cause of Wolf Creek cost overruns to determine the reasonableness of incurrence prior to its 1981 purchase of a six percent share. . . .
“Having failed to inquire into the reasonableness of Wolf Creek cost incurrence prior to (or subsequent to) its purchase of an interest in Wolf Creek, the Commission finds that imprudence in cost incurrence prior to the purchase of KEPCo’s interest should be imputed to KEPCo and that KEPCo is responsible for imprudence in cost incurrence subsequent to the purchase of its interest. The Commission finds that KEPCo ratepayers should be shielded from imprudently incurred costs and herein excludes such costs from KEPCo’s rate base. The Commission distinguishes imprudently incurred costs which are excluded from rate base from questions of economic loss resulting from excessively expensive capacity. The latter costs are appropriately shared by ratepayers and owners. That objective is achieved in the case of KEPCo by collection of costs through rates.”
The Commission disallowed $22,818,000 from KEPCo’s rate base. None of the parties have cited a case directly on point. K.S.A. 66-128c expressly provides the Commission with the authority to evaluate the efficiency or prudence of acquisition as well as construction practices of that utility in disallowing imprudent costs.
In the present case, the Commission found that KEPCo failed to analyze the causes or determine the reasonableness of the Wolf Creek cost overruns prior to its acquisition or purchase of Wolf Creek in 1981. Thus, we believe that it was within the Commission’s power to disallow those amounts of overruns from KEPCo’s rate base. Furthermore, if a portion of the cost of construction was imprudently incurred, that situation would not be changed simply because KEPCo purchased a share of the plant at a later time. KEPCo is not in the position of a bona fide purchaser for value. It- takes its share of ownership in the plant subject to any imprudent construction disallowance.
The KCC’s duty was to determine the fair value of the plant. In so doing, it had the authority to eliminate those portions of the construction costs which were inefficiently or imprudently incurred. The KCC requested KEPCo to come up with a plan to take care of any financial problems caused by its order by means of a surcharge or otherwise. In our judgment, the KCC had the power to handle the matter in that way. Although the parties apparently agree that KEPCo’s shareholders and ratepayers are the same people, we will leave it up to the future determinations of the KCC as to the appropriate action required to solve any problems that might remain. KEPCo may still appeal any later order it deems unlawful or otherwise improper.
We have considered all of the contentions of the utilities and the evidence in the record in this case and have concluded that the KCC’s disallowance of those construction costs it found to have been imprudently incurred was supported by substantial, competent evidence, was within the statutory powers of the KCC, and was neither unlawful, arbitrary, nor capricious.
Deduction of Excess Physical Capacity from the Rate Base
The KCC, in its order, found that approximately $944,000,000 of the prudent construction costs should be excluded from the rate base for the reason that a portion of these costs constituted excess physical capacity, because part of the plant was not “used or required to be used” to provide current services to the ratepayers. This disallowance for excess physical capacity was allocated in the amount of approximately $716,000,000 to the rate base of KGE and $228,000,000 to the rate base of KCPL. No deduction was made from the rate base of KEPCo. KGE and KCPL maintáin that this order of the KCC was unreasonable and unlawful.
The cases in this field hold that a utility is not necessarily entitled to a return and profit on its investment in a new generating plant simply because it acted prudently in deciding to build and in actually constructing the plant. It is the usual practice for a state regulatory commission to inquire whether a new plant is “used and useful in rendering service to the public.” The Kansas statutes enacted in 1984 varied this test slightly. K.S.A. 66-128 requires the KCC to determine the reasonable value of all or whatever fraction or percentage of the property of any public utility which is “used and required to be used” in its service to the public within the State of Kansas.
K.S.A. 66-128c defines “excess capacity” to mean any capacity in excess of the “amount used and required to be used” to provide adequate and reliable service to the public. The KCC is authorized in its discretion to prohibit or reduce the return costs •incurred in constructing, maintaining, or operating excess capacity. K.S.A. 66-128b authorizes the Commission to require a public utility to defer inclusion of the reasonable value of property determined to be not currently used and required to be used and may require the phase-in of such value over any period of time or in such increments as it deems to be appropriate.
Other state regulatory commissions have reached similar results under the simpler and more traditional “used and useful” test by determining: (1) Whether the utility has constructed excess capacity; (2) what effect such excess capacity should have on the calculations of the revenue requirement; and (3) which plants to exclude from the rate base in the event of excludable excess capacity. The statutory provisions for excluding excess capacity are intended to prohibit a utility from earning a return on an investment which is not being used to accomplish the utility’s ultimate goal of providing services to its customers.
In determining the excess physical capacity of Wolf Creek in this case, the KCC stated that the factors to be considered are: (1) Peak demand or responsibility, (2) reserve margin, and (3) available capacity. In determining available capacity, the Commission used the companies’ accredited capacity figures. The Commission also found certain generation facilities were available for use even though the companies claimed such facilities had been retired, including KCPL’s Hawthorn Units 1 and 2.
The Commission ultimately found that 327 megawatts (MW) of KGE’s available capacity and 314 MW of KCPL’s available capacity were not used and required to be used and thus constituted excess physical capacity. It must be emphasized again that the KCC did allow a full recovery of those costs through depreciation. The KCC denied KGE and KCPL only a return or profit on those costs. The KCC also recognized that inclusion in the rate of such costs or a portion thereof would be subject to future KCC orders as more of Wolf Creek became used and required to be used.
The KCC recognized that, in determining excess capacity, electric utilities must be permitted to plan for the future and that it would be ridiculous to construct generating plants only when the need arises and without anticipating future growth. Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, 677, 544 P.2d 1396 (1976). The KCC selected the year 1990 as the reference year, allowing for five years of projected growth in peak demand from 1985, when Wolf Creek was to commence its operations. The KCC thus set a five-year period for a planning horizon or load forecast.
The KCC also determined the reserve margins for each utility sufficient, to cover any day-to-day variations in operating conditions. All utilities must have some reserve capacity to protect against shortages caused by occasional plant shutdowns. The utility should be able to recover investments in, and a profit on, that reserve capacity. The problem is to establish a reserve margin that is high enough to provide reliable and adequate service, but not so high that customers are charged for unnecessary plant capacity. The expert witnesses suggested that a 15% to 25% reserve margin was required. The KCC considered the testimony of the various experts and found that a reserve margin of 20% was justified.
The utilities maintain that the Commission did not apply proper legal standards in determining excess capacity. We find this contention to be without merit. The standards applied were those required by the 1984 Kansas statutes discussed above.
The utilities contend that the Commission arbitrarily, unreasonably, and erroneously chose the year 1990 to calculate the owners’ system capacity balances. In its findings, the Commission noted that the selection of a reference year was difficult, because no witnesses had proposed standards for selection of a reference year. We cannot say that the selection of 1990 was arbitrary. It provided a five-year planning horizon perspective which is reasonable. We hold that the selection of the reference year of 1990 was not arbitrary. This is especially true because the Commission, in its order, recognized that if there were changes in the demand for electricity in the years to come, the owners could seek the Commission’s approval to include more of Wolf Creek in the rate base.
Likewise, the contention of the utilities that the Commission’s peak demand forecast did not consider any possible increase in the demand for electricity generated by lower rates is not persuasive. If future power demands exceed the KCC’s forecast because of price elasticity, the utilities may request another hearing before the Commission.
KCPL maintains that the Commission’s inclusion of 41 MW of purchased power in KCPL’s available capacity while excluding all purchased power in determining KEPCo’s available capacity is a denial of equal protection of the law. The Commission took the position that KEPCo is not similarly situated with KGE and KCPL. Prior to Wolf Creek, the operations of KEPCo were totally reliant on purchased power to meet their load requirements. KEPCo elected to become an owner of a share of the electric generating plant at Wolf Creek rather than remaining a wholesaler of electricity. KEPCo is different from the other two utilities because KEPCo is an electric cooperative, not a shareholder utility. The difference is discussed in Sekan Electric Coop. Ass’n v. Kansas Corporation Commission, 4 Kan. App. 2d 477, 609 P.2d 188 (1980), where an electric cooperative was treated differently from an investor-owned utility in regard to “equity returned capital.” The court pointed out that a cooperative does not secure equity by stock offerings in the marketplace and a return large enough to pay dividends is not required to attract equity capital or to make a cooperative financially sound.
KEPCo is a nonprofit generating and transmitting wholesale distributor of electricity to its member rural electric cooperatives. The shareholders or stockholders are the ratepayers. The record shows that KEPCo was required to purchase a portion of the electricity transmitted to obtain the lines to get the electricity to its customers. KEPCo and the other utilities are not similarly situated and we cannot say that the Commission’s order violated KCPL’s right to equal protection.
KCPL contends that the Commission erroneously included KCPL’s Hawthorn Units 1 and 2 in determining that utility’s available capacity because those units have been retired from service. The addition of those units added an additional 130 MWs to KCPL’s available capacity in 1990. The evidence presented, by KCPL showed that Hawthorn Units 1 and 2 are fossil fuel-fired plants placed in inactive reserve by KCPL in 1984 and retired on December 31, 1984, but they could be rehabilitated in the future, if an additional need for electricity arose. The Commission found that the units were retired only in an accounting sense and were “retired” long before the previously scheduled retirement dates of 1991, which would correspond with a normal 40-year life for fossil fuel steam plants. Furthermore, although the evidence regarding Hawthorn Units 3 and 4 was similar, the Commission did not include them in the available capacity. We have concluded that the Commission acted reasonably and considered the interests of all parties in arriving at its decision.
KGE complains that the finding of the Commission that a portion of Wolf Creek is excess capacity is unreasonable because Wolf Creek replaced the older KGE gas/oil units, which Wolf Creek was constructed to and did displace. We find no merit to this contention. It was the construction of Wolf Creek that created the excess capacity. A regulatory Commission has broad discretion to determine which plant constitutes excess capacity. Furthermore, as older units become so obsolete that their retirement is necessary, that fact will be reflected in future orders of the Commission.
We have considered all of the legal issues raised by the utilities and considered the record as a whole. We have concluded that there is substantial, competent evidence to support the findings of the KCC in determining excess physcial capacity, and that the Commission followed the statutory standards and exercised its discretion in a lawful manner.
Deduction of Excess Economic Capacity from the Rate Base
After determining that disallowances from the rate base should be made for imprudent construction costs and excess physical capacity, the Commission concluded that an economic evaluation of Wolf Creek was necessary. The Commission was impressed by testimony that, apart from whether excess physical capacity exists, a nuclear plant may represent capacity which is not economical because it has excessive capital costs when compared to alternative types of generating facilities.
The Commission found from the evidence that Wolf Creek was an extraordinarily expensive means of providing electric generating capacity. It valued Wolf Creek at a cost of $1290 per KW, which included an allowance for the lower operational costs of Wolf Creek compared to coal plants. The Commission considered the costs of construction of a coal generating plant as a benchmark for its evaluation because the greater capital costs for the Wolf Creek nuclear facility were of doubtful economic benefit to the ratepayers. The Commission concluded that no profit or return on that economically inefficient excess should be allowed KGE and KCPL. However, as part of an overall risk-sharing approach, the Commission did allow total recovery of tiróse costs through depreciation. Because the KEPCo shareholders are the same people as the ratepayers, the Commission found that risk sharing was accomplished without an explicit exclusion from KEPCo’s rate base.
In determining that there should be a disallowance from the rate bases of KGE and KCPL for excess economic capacity, the Commission balanced the interests of the utility investors with the interests- of the ratepayers. In doing so, it used a risk-sharing approach. In Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. at 674, this court stated that, in fixing the rates of an electrical utility under K.S.A. 66-128, the Commission has a two-phase duty in determining the rate base:
(1) To determine the property of a utility used or required to be used in its services to the public, and
(2) to ascertain the reasonable value of such property whenever it deems the ascertainment of such value is necessary to fix fair and reasonable rates. K.S.A. 66-128 was amended in 1984 to authorize the Commission to determine the fraction or percentage of a facility that is used and required to be used.
Under K.S.A. 66-128c, the Commission is empowered to evaluate the efficiency or prudence of acquisition, construction, or operation of a utility. One of the factors to be considered for determination of the reasonable value of electric generating property set forth in K.S.A. 66-128g is factor No. 11, which requires the Commission to consider whether the utility accepted risks in the construction of the facility which were inappropriate to the general public interest to Kansas. This is obviously a legislative recognition of the risk-sharing approach.
In using the risk-sharing approach to arrive at the reasonable value of Wolf Creek, the Commission looked to the factors in K.S.A. 66-128g(a) and discussed the evaluation with respect to (1) the owners’ decision to build and continue Wolf Creek; (2) the economic impact and rate comparisons; and (3) the risk assumptions and sharing which included a finding that the owners accepted enormous risks in building Wolf Creek.
The utilities contend, in substance, that the Commission erred in applying its risk-sharing approach and that it should have evaluated Wolf Creek at its actual prudent cost without consideration of the impact of the proposed rate increases on the ratepayers and the general public. The balancing of the rights of the investors and ratepayers and consideration of risk sharing is not a new procedure in Kansas. In Kansas Power & Light Co. v. Kansas Corporation Commission, 5 Kan. App. 2d 514, 525-29, 620 P.2d 329 (1980), rev. denied 229 Kan. 670 (1981), the Court of Appeals addressed the Commission’s treatment of a KP&L gain on the sale of its office building in Salina. KP&L treated the gain as outside its accounts for rate-making purposes. The Commission treated the gain as appropriate for rate making and allowed the gain to flow through to the ratepayers. The court recognized the balancing of gains and losses between ratepayers and stockholders and mentioned the risk of loss of investment capital as a factor to be considered.
In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 389 P.2d 515 (1963), which is discussed earlier in the opinion, this court recognized that the Commission should receive and consider any evidence which has a relevant bearing on reasonable value and then determine what formula, or combination of formulae, it believes should be used under the facts and circumstances of the case to arrive at a reasonable value of the property for rate-making purposes.
There are cases in other jurisdictions which hold that the present fair value of generating facilities cannot exceed the present cost of constructing a substitute system of modern design, capable of generating and distributing the same quantity of power at less operating expense. See Utilities Comm. v. Power Co., 285 N.C. 377, 206 S.E.2d 269 (1974). In Utilities Comm. v. Power Co., 285 N.C. 398, 206 S.E.2d 283 (1974), the court stated that neither original cost nor replacement cost are a measure of fair value but only indicators thereof. The term “just and reasonable rates” imports flexibility in the exercise of a complicated regulatory function by a specialized decision-making body and this was not intended to confine the ambit of regulatory discretion to an absolute or mathematical formula but rather to confer on the regulatory authority the power to make and apply policy concerning the appropriate balance between prices charged to utility customers and returns on capital to utility investors consonant with constitutional protections applicable to both. Pennsylvania, etc. v. Pennsylvania Gas, 492 Pa. 326, 337, 424 A.2d 1213 (1980), cert. denied 454 U.S. 824 (1981).
The Commission referred to other jurisdictions which have recognized “risk sharing” as a valid approach to the problem of excess capacity and cancelled plant situations. Iowa Planners Net. v. Iowa State Commerce, 373 N.W.2d 106, 110 (Iowa 1985); Phila. Electric Co. v. Pa. P.U.C., 61 Pa. Commw. 325, 433 A.2d 620 (1981); Re Carolina Power and Light Co., 49 P.U.R. 4th 188 (N.C. 1982); Re Otter Tail Power Co., 44 P.U.R. 4th 219 (N.D. 1981). See, Re Nine Mile Point No. 2 Nuclear Station, 62 P.U.R. 4th 455 (N.Y. 1984); and Colton, Excess Capacity: Who Gets the Charge from the Power Plant?, 34 Hastings L. J. 1133, 1146-49 (1983), where the Commission applied risk sharing to capital costs which exceeded construction costs.
The utilities raise a number of legal issues attacking the disallowance for excess economic capacity. They maintain that the imposition of a reasonable value methodology after Wolf Creek was already constructed and placed into service would deny the utilities a fair opportunity to earn a fair return on their investment. They question the sufficiency of the evidence to support the findings of the Commission. We find these contentions to be without merit. In our judgment, the statutory provisions adopted in 1984, coupled with the prior decisions of the Kansas courts, gave to the KCC a broad authority to evaluate the Wolf Creek generating plant, including the use of the risk-sharing approach in determining excess economic capacity.
The utilities argue that the Commission’s use of a reasonable value methodology was invalid because it denied recovery of expenses actually incurred which were necessary to comply with safety regulations of the NRC. In this case, the utilities were allowed to recover all of the costs of Wolf Creek except the disallowance for imprudent costs. The Commission simply denied the utilities a return on that portion of Wolf Creek which represented physical or economic excess capacity. Thus, the amount of the Wolf Creek costs that resulted from compliance with NRC safety requirements are to be recovered by the utilities. Furthermore, the utilities’ argument that the orders of the KCC interfere with safety regulations of the NRC has been rejected by the United States Supreme Court. In Pacific Gas & Elec. v. Energy Resources Comm’n, 461 U.S. 190, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983), the United States Supreme Court stated that although Congress intended that the federal government should regulate the radiological safety aspects involved in the construction and opei-ation of nuclear plants, the states retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns. The determination of the rate base by the Commission in this case does not in any way encroach on the power of the NRC to establish and regulate the safety requirements of nuclear plants.
The utilities also complain that the KCC does not have the authority to phase-in the rate increases over a period of five years. We find this contention to be without merit. In the first place, we note that KGE and KCPL requested in their rate application that the KCC phase-in their proposed rate increases. The Commission did just that. Furthermore, K.S.A. 66-128b specifically authorizes the Commission to phase-in “the reasonable value of property determined not currently used or required to be used.” The phasing-in of increased rates over a period of time has the effect of balancing the interests of the current ratepayers and the interests of future ratepayers. In addition, phasing-in the value of property as a part of the rate base is a useful tool which the KCC may use in balancing the interests of the investors and the ratepayers.
KCC’s Method of Allocating the KCPL Rate Base and Cost of Services Between Kansas and Missouri
Because of the fact that KCPL provides electrical service to customers in both Kansas and Missouri, that utility has raised an issue regarding the Commission’s allocation of the rate base and cost of service between those two states. KCPL contends that the method of allocation used was arbitrary, unconstitutional, unlawful, and confiscatory.
Because of the interstate nature of KCPL’s business, the regulatory commissions in both Kansas and Missouri are required to allocate KCPL’s operating costs and plant investment between the residents of those states. One commonly used method of allocating a public utility’s costs is termed the “coincident peak” or “C.P.” method. This method allocates operating costs and plant investment to the jurisdictions actually served by a utility based upon the percentage of total system demand contributed by customers in the serviced jurisdictions during certain periods of time. KCPL took the position that, since the demand of Kansas customers is at its very highest in the four summer months when air-conditioning usage is at its greatest, the 4 C.P. method should be used in making the allocation. The KCC staff disagreed. Although agreeing that KCPL’s total amount of generating capacity may be determined by summer peak cost, it found that total capacity is determined by all twelve months of the year. The staff recommended that the 12 C.P. allocation be used, because it recognized KCPL’s capacity requirements throughout all 12 months of the year. The Commission found that the 12 C.P. allocation factor is the most appropriate method of allocating KCPL’s production costs and transmission plant value between the jurisdictions because it better recognizes KCPL’s investment in base-load facilities used year round and not solely during the summer peak months. We cannot say that the Commission’s adoption of the 12 C.P. method was unreasonable or in any way illegal. We note that KGE requested and the Commission adopted the 12 C.P. methodology in connection with the KGE plants. At the time the KCC made its decision, KCPL’s case was still pending before the Missouri commission. In the event that consistent methodology is not adopted by Kansas and Missouri, KCPL can make an application to the KCC for relief.
The Reasonableness of the Overall Result
As we stated at the beginning of this opinion, in a rate-making case, the goal of the KCC, as a state regulatory agency, should be to establish a rate within the “zone of reasonableness” after application of a balancing test in which the interests of all concerned parties are considered. In our judgment, the KCC has accomplished that result.
The KCC acted within its statutory powers. The utilities received virtually all of the operating expenses that they requested to operate and maintain the plant and to decommission it at the end of its life. The KCC eliminated approximately 10% of the costs of construction which it found to be inefficiently and imprudently incurred. All of the remaining 90% of the Wolf Creek construction costs are to be recovered through annual depreciation expenses over the life of the plant. It is only the return or profit on certain costs which has been restricted by the Commission. The disallowances for excess physical capacity and excess economic capacity were properly determined by the use of recognized methodology as the Commission proceeded to determine a fair valuation of the Wolf Creek property. The KCC left the door open for the possibility that portions of the construction costs found to constitute excess physical capacity and excess economic capacity might be included in the rate bases at some time in the future. We find no error in any actions taken or orders entered by the KCC.
The orders of the Kansas Corporation Commission are affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a will contest case. The appeal is from an order of the district court sustaining the will.
Nellie F. Estes, a resident of Minneola, Clark County, died testate on December 18, 1983. She was survived by Gladys Evans, her only child and sole heir. Gladys Evans petitioned for probate of her mother’s will on January 9, 1984, under the simplified estates act. Gladys Evans was the sole legatee and devisee under the will if she survived her mother. In the event Gladys Evans predeceased Nellie Estes, the Estes home was devised to the Minneola Christian Church and all the rest of Nellie Estes’ property was bequeathed and devised to her trustees in trust for the benefit of ten charities subject to certain leases for agricultural purposes. In the will, Gladys Evans was named executor with Voyle E. Chance and Austin Chance designated trustees and alternate executors.
Gladys Evans declined to serve as executor and asked that the Chances be appointed in her stead and that they be given emergency powers to conserve the estate until the hearing could be held. Letters Testamentary were issued to Voyle E. Chance and Austin Chance on January 9, 1984. The hearing on the petition to admit the will to probate was set for February 2, 1984. Notice was published and mailed to Gladys Evans, Voyle Chance, Austin Chance, the ten charities and the three farm tenants.
Gladys Evans died on January 19, 1984, some two weeks before the hearing on her mother’s will. Her will was identical to her mother’s except Mrs. Estes was the legatee and devisee rather than Gladys Evans. The hearing on the will of Nellie Estes was held on February 2 pursuant to the notice and the will was admitted to probate. Petitioner appeared by her attorneys and Voyle and Austin Chance personally appeared.
Pursuant to K.S.A. 59-2291 et seq., on September 10, 1984, Voyle and Austin Chance, as executors of the estate of Gladys Evans, filed a disclaimer to any and all interest in the estate of Nellie Estes, under the will, through intestacy or by joint tenancy. The inventory listed $882,076.89 worth of probate property and $637,329 of joint tenancy property in the Estes estate. The Kansas inheritance tax closing letter was filed October 17, 1984, and the federal estate tax closing letter was filed March 19, 1985.
On January 28, 1985, the appellants, Walla Ridout, Roy Burchett, and Frances Ogilvie (sister, brother and niece of Nellie Estes, respectively), and Beverly Hamilton, Norma Ziegler, Brenda Carrillo, Richard Young and Merle Young (grandnieces and grandnephews of Nellie Estes), filed a petition seeking to set aside the order admitting the will to probate and to obtain an order of intestacy in the estate of Nellie Estes. The district court granted summary judgment to appellees and this appeal followed.
The primary issue presented by this case is whether under Kansas disclaimer statutes, K.S.A. 55-2291 etseq., Gladys Evans’ disclaimer had the effect of eliminating her as an heir of Nellie Estes. Appellants argue that by her disclaimer, Gladys Evans is presumed to have predeceased Nellie Estes, thus eliminating her as an heir. Accordingly, appellants reason that they then became heirs of Mrs. Estes and, as such, were entitled to notice of the hearing to admit the will to probate. They contend that since they did not receive notice, the order admitting the will to probate is void, the time for submitting the will to probate has expired and the title to Nellie Estes’ property descends to them by intestate succession.
Appellees counter with the argument that appellants’ construction of K.S.A. 59-2293(a) ignores the plain language of the statute, defies legislative intent and would cause uncertainty and injustice in probate proceedings. They also argue appellants’ construction would cause inconvenience and an undue burden upon potential petitioners by requiring them to determine whether or not they were going to disclaim prior to petitioning to admit a will to probate.
The trial court found for appellees, stating:
“This disclaimer statute with all of its ramifications is essentially a tool to effect tax savings and not an instrument to vary the terms and conditions of the Estes will. It should be construed strictly in order to effectuate its purpose. It does not in and of itself create rights where none previously existed. It would follow then that the relatives do not qualify as statutory designees as defined in K.S.A. 59-2224
Resolution of the issue raised by appellants requires examination of the Kansas disclaimer statutes, K.S.A. 59-2291 et seq.
K.S.A. 1985 Supp. 59-2291 authorizes a person or their personal representative to disclaim in writing in whole or in part any interest passing to that person as an heir, next of kin, devisee, legatee or joint owner of property. K.S.A. 1985 Supp. 59-2292 governs the filing and recordation of the disclaimer interest. K.S.A. 59-2293, the statute with which we are primarily concerned, pertains to the effects of a disclaimer. It provides:
“(a) Unless the decedent or donee of the power has otherwise provided, the property, interest or power disclaimed as provided in K.S.A. 59-2291 and amendments thereto shall descend or be distributed as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take pursuant to a power of appointment exercised by or under a testamentary instrument, as if the disclaimant had predeceased the donee of the power. In every case, the disclaimer shall relate back for all purposes to the date of death of the decedent or the donee, as the case may be, except that, in the case of a beneficiary under the terms of an inter vivos trust, the disclaimer shall relate back to the date of the transfer.”
Before considering the effect of this statute, we will briefly review the rules of statutory construction. The fundamental rule, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985). 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 to reconcile the different provisions so as to make them consistent, harmonious and sensible. State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984). In determining legislative intent, the court may properly look to the purpose to be accomplished, the necessity and effect of the statute, and the effect the statute may have under the various constructions suggested. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 1, 610 P.2d 1107 (1980).
While we have found no Kansas cases on point, nor any relevant legislative history, we note that the general purpose of disclaimer statutes is to abolish the distinction between testate and intestate estates. At common law, a legatee or devisee could always renounce his testamentary disposition, while a distributee could not. The theory was that one taking under a will had the right to accept or reject the testator’s offer, while a distributive share in intestacy vests by force of law in the distributee at the date of death. Special Committee on Disclaimer Legislation, Disclaimer of Testamentary and Non-testamentary Dispositions — Suggestions for Model Act, 3 Real Prop., Prob. and Trust J. 131 (1968). This different treatment produced undesirable tax consequences; for instance, a distributee who rejected his inheritance was subject to federal gift tax while a disclaimer by a devisee or legatee produced no tax consequences. Thus, as pointed out by the trial court, the disclaimer statute is essentially a tool to effect tax savings. Disclaimer statutes can also be utilized to avoid creditors (see Kozloski & Mantell, Probate and Tax Consequences of Disclaimers in Connecticut, 54 Conn. B.J. 638 [1980]) and to effectuate the passing of property as the disclaimants determine the decedent wished (see Estate of Bryant, 149 Cal. App. 3d 323, 196 Cal. Rptr. 856 [1983], where the children disclaimed so the mother could attempt to take the entire estate of an intestate father).
The appellants’ suggested construction of K.S.A. 59-2293 was not contemplated by the legislature. K.S.A. 59-2293 does not create a presumption that Gladys Evans predeceased her mother by her disclaimer. Rather, it provides the property shall descend as if Gladys Evans predeceased Nellie Estes. Here the will had contingent provisions in case this event occurred. There is no question the disclaimer related back to the date of death of Nellie Estes. The key here is the interest that is disclaimed, not the effective date. Gladys Evans did not disclaim her status as an heir or her relationship to Nellie Estes. She disclaimed her right to take property under the Estes will. A disclaimer is a renunciation of a property right, not a change of status or relationship. It is the surrender of this right which relates back. The fiction of predeceasing comes into play for one purpose only, that of indicating the disposition and descent of the interest disclaimed. Thus, Gladys Evans retained her identity as an heir of Nellie F. Estes even though she disclaimed her right to the property.
Our interpretation of the Kansas disclaimer statute is in agreement with a number of other courts that have held that disclaimer statutes only affect those to whom a disclaimed interest descends, and not the manner in which the estate descends. See Welder v. Hitchcock, 617 S.W.2d 294, 298 (Tex. Civ. App. 1981); Matter of Fienga,, 75 Misc.2d 233, 347 N.Y.S.2d 150 (1973); and Estate of Bryant, 149 Cal. App. 3d at 334.
Since Gladys Evans retained her identity as an heir, it follows that appellants are not heirs of Nellie Estes and were not entitled to notice under K.S.A. 1985 Supp. 59-2209. Accordingly, they have no standing to challenge the probate proceedings. The notice of the hearing on admission of the will to probate is approved as made and the contingent beneficiaries under the will, the trustees, are entitled to the property pursuant to the intention of the testator.
In addition, we note that the jointly owned property is disposed of the same way as the probate property. Under K.S.A. 1985 Supp. 59-2291(a)(8), a person is authorized to disclaim the right to take more than her equitable share of the joint property. Gladys Evans’ disclaimer of her interest in the joint property is a disclaimer of any right she had in that property. Thus, Nellie Estes owned the entire estate in the joint property and it also passed by the terms of her will to the contingent legatees, the trustees.
In light of our holding that appellants have no standing to challenge the probate proceedings, we need not discuss the other issues raised by appellants.
The judgment of the trial court is affirmed. | [
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Two original complaints in discipline filed by Arno Windscheffel, disciplinary administrator, against A1 Hybsha, of Wichita, have been consolidated in this Court. Respondent was previously indefinitely suspended from the practice of law following disciplinary proceedings wherein he was found to have violated the Code of Professional Responsibility on numerous occasions. In re Hybsha, 237 Kan. 151, 697 P.2d 1309 (1985).
W-3163
Complaint number W-3163 alleged respondent had neglected legal matters entrusted to him in ten different matters in the United States Bankruptcy Court for the District of Kansas. Respondent repeatedly failed to appear for scheduled hearings before the court after accepting fees to do so, failed to comply with court orders, failed to communicate with clients, and was generally unavailable to both the court and his clients. Following a hearing before a panel of the Board for Discipline of Attorneys, in which respondent did appear and participate, the Board found the allegations of the complaint to generally be true and that respondent repeatedly neglected legal matters entrusted to him by his clients. DR 6-101(A)(3), 235 Kan. cxlvii.
W-3257
James Roupp hired respondent to represent him in a lawsuit in the District Court of Harvey County. Respondent filed an answer and counterclaim on behalf of Mr. Roupp. Respondent failed to attend several pretrial discovery conferences although ordered to do so and failed to appear for trial of the matter. Mr. Roupp was required to hire other counsel to complete the case. During proceedings prior to trial, sanctions were lodged against Mr. Roupp for his counsel’s failure to comply with discovery re quests. This complaint was combined with W-3163 for hearing before the Board for Discipline of Attorneys and the Board again found respondent had neglected a legal matter entrusted to him and recommended, in both matters, that respondent be indefinitely suspended from the practice of law in the State of Kansas.
The conduct of respondent in accepting fees from his clients and then totally neglecting their affairs is a continuation of similar conduct which led to respondent’s suspension, in 1985. Considering the seriousness of the present complaints and the history of this respondent’s conduct in the practice of law, it is the unanimous opinion of this Court that respondent should be disbarred from the practice of law in the State of Kansas.
It is Therefore Ordered that Al Hybsha, also known as Adolph Allison Hybsha, 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 in Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
Dated this 18th day of July, 1986. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiff, Koch Engineering Company, from a judgment of the Butler County District Court refusing to set aside as fraudulent certain conveyances of property by defendant Wayne C. Faulconer to his sister, Margaret A. Culp. The issues presented for our review are, first, whether this court should make a de novo review of this case and, second, whether the trial court’s decision is supported by substantial, competent evidence in light of the standards applicable in fraud cases.
This action was commenced by Koch on December 18, 1980, to set aside conveyances from Wayne Faulconer to Margaret Culp. Plaintiff contended that the conveyances were fraudulent and were made in violation of K.S.A. 33-102. That statute reads:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
This action is a sequel to an earlier lawsuit brought by Koch against Faulconer in the district court of Sedgwick County. Our opinion following the appeal in that case may be found in Koch Engineering Co. v. Faulconer, 227 Kan. 813, 610 P.2d 1094 (1980). Wayne Faulconer was employed by Koch as an engineer from 1971 until early March 1978. During the latter part of Faulconer’s employment with Koch, Koch was the holder of an exclusive licensing agreement from Sulzer Brothers, Ltd., a Swiss corporation, to manufacture and sell a highly technical packing used in rectification towers for the separation of chemicals. As a Koch employee, Faulconer had access to Sulzer technology. Also, while with Koch, he signed a noncompetition agreement. During 1977, Faulconer undertook to utilize Sulzer technology and to establish his own business in direct competition with Koch. He ordered stainless steel wire cloth, using specifications virtually identical to those used by Koch. He placed an order for the manufacture of a crimping machine, using drawings substantially identical to the ones used by Koch. In early 1978, while he was still employed by Koch, Faulconer made proposals to Koch customers offering to sell packing that would possess the technical properties of Koch packing at a price substantially less than Koch’s price. In one proposal he used an original Koch drawing which he had taken from Koch, obliterating the Koch title block and the confidentiality notation. This activity resulted in the termination of his employment by Koch and the filing of the first action against him by Koch on March 30, 1978.
Koch’s lawsuit was based upon Faulconer’s misuse of trade secrets and his misappropriation of protectable exclusive licensing agreements. Koch sought and obtained a temporary restraining order. After a lengthy trial, final judgment was entered on February 8, 1979. This included a permanent injunction enjoining Faulconer from manufacturing, offering for sale, selling or delivering the products, and ordering him to deliver certain parts of the crimping machine to Koch. Faulconer appealed. Meanwhile, he continued his business activity and failed to deliver the parts. Successive motions for citation in contempt were filed by Koch and successfully presented. On November 16, 1979, the trial court held Faulconer in contempt, expanded the injunction, and again ordered Faulconer to deliver certain essential parts of his crimping machine to Koch. The trial court withheld the entry of judgment and the imposition of sanctions for contempt pending the outcome of the appeal. Faulconer appealed from that order, and the appeals were consolidated here. Later, on December 14, 1979, the trial court entered judgment against Faulconer for some $16,000. While the appeal was pending, some $32,000 was paid into the district court of Sedgwick County by Faulconer’s customers on court order, and those sums were paid over to Koch pursuant to court order. It would appear that if the trial court were affirmed on appeal, a substantial additional money judgment against Faulconer, arising out of his contemptuous conduct, was likely.
We have greatly condensed the facts giving rise to the Sedgwick County proceedings. These are set forth in greater detail in our original opinion. See 227 Kan. at 813-25. We deem it, important here, however, to note that the original action by Koch against Faulconer was based upon breach of a confidential relationship, double dealing and falsity. Deceit and dishonesty were at the very heart of the acts that created the cause of action and the resulting judgment.
On May 19, 1979, Joseph D. Faulconer, father of Wayne Faulconer and'Margaret Culp, died a resident of Butler County, leaving a will by which each of his three children, Wayne, Margaret and Charles, received one-third of his estate. Sometime during the probate of the estate, an attorney in El Dorado prepared a demand note from Wayne Faulconer to Margaret Culp for $100,000. At defendant’s request, the, note was backdated to May 29, 1979. Under the terms of the will, Wayne Faulconer received a one-third interest in certain Butler County real estate, 500 shares of stock in A.T. & T. and 1200 shares of Kansas Gas and Electric stock. Upon the closing of Joseph’s estate, in May 1980, Wayne immediately sold the stock for something in excess of $47,000 and endorsed the check over to his sister, Margaret. He also conveyed his one-third interest in the real estate, valued at about $50,000, to her. Margaret returned the demand note, marked paid, to Wayne. Margaret endorsed the $47,000 check over to Charles and bought his one-third interest in the realty. Charles conveyed that interest to Margaret.
Our opinion in Koch Engineering Co. v. Faulconer was filed on May 10,1980, and thereafter the Sedgwick District Court held a hearing and entered a final judgment in favor of Koch and against Wayne Faulconer for $107,000, which included the ear lier $16,000 judgment. Koch had already received some $32,000, leaving an unsatisfied judgment of $75,000.
The suit now before us was commenced on December 18, 1980. The case was tried and final arguments were made on November 6, 1981, less than one year after the case was commenced. The trial court took the matter under advisement and did not make a decision until March 21, 1985, three years, four months, and fifteen days after trial. This inordinate delay by the trial court forms the basis for the first issue on appeal.
Koch first contends that there should be no presumption of the validity of a trial court’s findings of fact when those findings are rendered almost three and one-half years after the trial of the case, and prior to the time that a transcript of the trial proceedings is prepared. Appellant recognizes the familiar rule that where a trial court has made findings of fact and conclusions of law, the scope of appellate review is for this court to determine whether the trial court’s findings are supported by substantial, competent evidence and whether the findings are sufficient to support its conclusions of law, which will not be set aside unless clearly erroneous. See American States Ins. Co. v. Ehrlich, 237 Kan. 449, 452, 701 P.2d 676 (1985); Woods v. Midwest Conveyor Co., 236 Kan. 734, Syl. ¶ 2, 697 P.2d 52 (1985); and City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976). Also, upon appellate review, this court accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court, and this court disregards any conflicting evidence or other inferences which might be drawn therefrom. American States Ins. Co. v. Ehrlich, 237 Kan. at 452.
Koch points out that no transcript of the proceedings was prepared and thus none was available to the judge when he made his findings of fact three and one-half years after trial. It also points to the many incomplete and incomprehensible passages in the transcript indicating that the reporter was unable, because of the passage of so much time, to adequately decipher his notes. In support of this contention, appellant relies upon the case of Smith v. Tri-State Transit Co. of Louisiana, 175 So. 83 (La. App. 1937), where the judgments were not rendered by the trial court until eleven months after the conclusion of trial, and the testimony was not transcribed prior to the rendition of the judgments. The Louisiana Court of Appeal observed:
“In view of these facts, there was greater possibility of the trial judge falling into error than would be the case had decisions been made immediately after trial, or with the transcribed testimony before him.” p. 83.
The Louisiana appellate court then proceeded to review the evidence in the case and to determine the facts for itself. The Louisiana case apparently stands alone: we have found no other cases supporting this rule. The trial court did see and hear the witnesses in the case and may well have had some recollection of their appearance, plus his own notes and recollection of the testimony. After holding the matter under advisement for a period of over three years, the trial court in effect adopted the proposed findings of the defendants on critical issues of fact, rather than preparing its individual findings. Even so, we decline to adopt the Louisiana rule. We will, however, carefully examine the record under our present rules.
We turn now to the determinative issue on appeal — whether the decision is supported by substantial, competent evidence, and whether the trial court applied the proper burden of proof under the circumstances of this case. Our court recently set out the elements of fraudulent conveyance and enumerated six badges or indicia of fraud in Credit Union of Amer. v. Myers, 234 Kan. 773, 778, 676 P.2d 99 (1984):
“In general, the elements which comprise a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, the participation of the grantee in such fraudulent scheme or such knowledge on the latter’s part of facts and circumstances as would import knowledge of the fraud to him. This court has recognized six badges or indicia of fraud. The badges or indicia of fraud are: (1) a relationship between the grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures.”
The above list, of course, is not intended to be exclusive. As the Supreme Court of Oklahoma said:
“ ‘The possible indicia of fraud are so numerous that no court could pretend to anticipate and catalog them.’ ” Toone v. Walker, 115 Okla. 289, 291, 243 Pac. 147 (1926).
Similarly, in 37 Am.Jur.2d, Fraudulent Conveyances § 10, we find:
“The facts which are recognized indicia of fraud are numerous, and no court could pretend to anticipate or catalog them all.”
Also, in 37 C.J.S., Fraudulent Conveyances § 79:
“While some courts, without purporting to set forth an exhaustive list, have enumerated many of the more common badges of fraud, the possible indicia of fraud are so numerous that no court could undertake to anticipate and catalog them all; they are as infinite in number and form as are the resources and versatility of human artifice.”
The general rule is, of course, that fraud is never presumed and must be established by clear and convincing evidence. The burden of establishing fraud is upon the party asserting it. Direct evidence of fraud is not always available; more frequently fraud must be established by circumstantial evidence.
As we said in Syl. ¶ 2 of Credit Union of Amer. v. Myers, 234 Kan. 773:
“Honesty and fair dealings are presumed, and one charging fraud must prove the same. Direct proof of fraud can seldom be obtained. Such evidence is not absolutely essential to establish the dishonest purpose of the parties to a pretended transfer of property. The fraudulent purpose may be shown by the conduct and appearance of the parties, the details of the transactions, and the surrounding circumstances.”
The trial court found that Margaret Culp and her husband kept large sums of cash in a locked filing cabinet in their home while living in Panama and later in California; and that Margaret was never aware that Wayne had been sued for money or a judgment rendered until she was served in this action. It found that during the period from 1974 to 1978 Margaret loaned money to Wayne by giving the money to her father to give to Wayne, knowing that her father would protect her on the repayment of the money. It found that in May 1979, Wayne acknowledged to his brother, Charles, that he was indebted to Margaret. Finally, the trial court found that on May 29,1979, Wayne, at the insistence of Margaret, who wanted the debt evidenced by a writing, went to the office of attorney Bob Green, where a note was prepared, signed by Wayne and delivered to Margaret. The court also found that Green stated that he knew that an indebtedness of Wayne to Margaret existed before Joseph Faulconer’s death. After reciting the various principles applicable in fraud cases, the trial court concluded that a badge of fraud is little more than a suspicious circumstance, that the so-called badges of fraud do not exist in this case sufficient to give rise to an inference of fraud, and that petitioner has failed to produce clear, convincing evidence that a fraud was committed by Wayne Faulconer or that Margaret Culp participated in the fraudulent scheme.
We agree with the trial court that badges of fraud are suspicious circumstances, but more need be said about them. Badges of fraud are circumstances frequently attending conveyances and transfers intending to hinder, delay, or defraud creditors. They are red flags, and when they are unexplained in the evidence, they may warrant an inference of fraud. Some are weak; others are strong. One weak badge of fraud, standing alone, would have little evidentiary value in establishing a fraudulent conveyance. For example, the mere fact that grantor and grantee are related, standing alone, would not support a finding that the conveyance was fraudulent. On the other hand, the concurrence of several badges of fraud are said to make out a strong case. See 37 C.J.S., Fraudulent Conveyances § 79; 37 Am. Jur. 2d, Fraudulent Conveyances § 10; Brennecke v. Riemann, 102 S.W. 2d 874, 877 (Mo. 1937); and see Hildebrand v. Harrison, 361 P.2d 498, 505 (Okla. 1961), where it was said:
“In Apple v. American Nat. Bank of Ardmore, 104 Okl. 69, 231 P. 79, 82, we said in the second paragraph of the syllabus that ‘If a transfer is made by a debtor in anticipation of a suit against him, or after a suit has begun, and while it is pending against him, this is a badge of fraud, and especially if it' leaves the debtor without any estate, or greatly reduces his property.’ As heretofore pointed out, the Ravenscraft-Hildebrand conveyance was made after the Huston suit had been filed.
“We had this to say in the third and fourth paragraphs of the syllabus to Toone v. Walker et al., 115 Okl. 289, 243 P. 147:
“Badges of fraud” are suspicious circumstances that overhang a transaction, or appear on the face of the papers. The possible indicia of fraud are so numerous that no court could pretend to anticipate and catalog them. A single one may stamp the transaction as fraudulent, and, when several are found in combination, strong and clear evidence on the part of the upholder of the transaction will be required to repel the conclusion of fraud.’ ”
As we have noted, the party who alleges fraud has the burden of proving it. This does not mean the party must come forward with direct evidence of fraud. When the party produces evidence of several badges of fraud, that evidence, if unrefuted and unexplained, may well be sufficient to fulfill the party’s burden of proof. While the burden does not shift, the opposing party then has the opportunity of going forward with the evidence, for, as we said in Polk v. Polk, 210 Kan. 107, 499 P.2d 1142 (1972):
“Where the circumstances surrounding the execution of a conveyance are such that an inference of fraud may be drawn therefrom, such inference is subject to being rebutted.” Syl. ¶ 5.
Turning to the evidence to support the trial court’s findings of fact, Margaret Culp testified that while her husband was in the service and they were living in Panama, they kept large sums of money, up to $10,000, in cash. They continued to do this after he retired and they moved to California, keeping the cash in a locked file cabinet in their home. She testified that she knew that Wayne had legal problems after he left Koch, but she first knew about the money judgment when she was sued. She testified that she loaned Wayne large sums of money in cash from 1974 through 1978, but gave the money in cash to her father to deliver to Wayne. Wayne Faulconer testified that he received money as a loan from his sister during the period in question, and both testified that the note was prepared and signed on the date it bears. Charles Faulconer testified that on the day following his father’s funeral, Wayne had said he was trying to start up his business and Margaret had loaned him some money. Attorney Green testified that he had prepared the note. He discussed it with Wayne: Wayne said he was indebted to his sister and wanted something in writing. Green believed that the note was not prepared on the date stated thereon, but was backdated at Wayne’s request. Wayne’s father, before his death, made a statement to Green that he was concerned about Wayne’s obligations. He did not say to whom the obligations were.
The bulk of the evidence pointing to critical issues in this case came from the defendants, Wayne Faulconer and Margaret Culp. Certain of their testimony was, to say the least, suspect.
First, we look to see if there was evidence of an intent on the part of the grantor, Wayne Faulconer, to hinder, delay, or defraud his creditors. The evidence is undisputed that Koch secured an injunction, from which Faulconer appealed. Thereafter, Faulconer was repeatedly cited for contempt and the Sedgwick District Court found that Faulconer’s conduct was not a mere technical violation, but was part of a pattern of conduct aimed at circumventing the court’s orders. It was a flagrant and intentional violation, amounting to bad faith conduct. $32,000 was paid into the clerk of the court under the court order; that money was ordered paid over to Koch even though Koch’s judgment against Faulconer was then only $16,000. The trial court with held the entry of judgment and the imposition of sanctions for contempt until the appeal was decided. This was prior to the conveyances from Wayne to Margaret. Wayne testified that when he executed the note to Margaret in 1979 he did not think there was any suit against him — yet the case had been pending since March 1978. It was pending when he conveyed the real estate and the proceeds of the stock sales to Margaret. For most of the two-year period following his discharge by Koch, Faulconer was unemployed and was engaged in furthering his business in violation of the Sedgwick District Court’s orders. His income from that business was effectively dried up when the trial court ordered his customers to make payment into court of amounts owed to him and further required him — under repeated threat of contempt — to deliver to Koch some of the essential parts of his crimping machine necessary in the manufacturing process. There is nothing in the record to suggest that he had substantial income or assets out of which any judgment in favor of Koch could be satisfied, except the property conveyed to Margaret. This evidence was sufficient to establish the required intent on the part of Wayne Faulconer.
We next turn to examine evidence of the badges or indicia of fraud to determine whether it was “sufficient to give rise to an inference of fraud.” The first badge is that of a relationship between the grantor and the grantee. Wayne and Margaret were brother and sister. That relationship is not contested.
The second badge is the grantee’s knowledge of litigation against the grantor. During her testimony, Margaret acknowledged that she knew that Wayne had legal problems after he left Koch. He was her baby brother and she was very close to him. She testified that she first knew about the money judgment when she was sued in this action. The principal money judgment, however, was not entered until after the transfer of property. She may well not have known about the precise details of the lawsuit until she was served with summons herein. That, however, is not required; all that is required is that the grantee have knowledge of litigation against the grantor. Margaret admits that she had that knowledge. The lawsuit by Koch had substantial impact upon Wayne Faulconer, with whom she was “very close.” The evidence clearly establishes that Margaret knew about the litigation. This badge was established.
The next badge of fraud is that of the insolvency of the grantor. Since the entry of the judgment, Koch has been unsuccessful in enforcing it. Koch found no property to apply on its judgment other than relatively modest amounts secured by garnishment from Wayne’s present employer. Wayne testified that his present property interests consist of exempt property — his home and his car and the things therein. While there is testimony that he at one time owned some stock futures, there is nothing in the evidence to indicate that he had substantial market investments or other property at the time of the transfer.
Finally, we examine the evidence as to whether consumation of the transaction was contrary to normal business procedures. The evidence before the trial court of the monetary transactions between Margaret Culp and Wayne Faulconer are outside the normal, customary and usual methods of doing business between a resident of California and a resident of Kansas, even between brother and sister. Margaret Culp testified in substance that during the period from 1974 to 1978, at Wayne’s request, she loaned substantial sums of money to him. Every penny of this was delivered in cash, not directly to Wayne but through their father, Joseph, who would make trips to California and carry the cash back to Wayne, who lived in Wichita. Margaret testified that she customarily kept large sums of cash, as much as $10,000, in a locked file cabinet at home. There was no explanation, however, of where this $10,000 came from, let alone where the the other $90,000 in cash came from. Margaret Culp, a college graduate, has worked most of her adult life as an accountant for various firms of certified public accountants and others. She is still doing some accounting work, part-time. Yet she had no record of the dates or amounts of any of her loans to Wayne, and no memory of any dates or any amounts. She thought she might have loaned him as much as $15,000 at one time, but she had no specific recollection, did not remember when, and had no record to support her testimony. She had no cancelled checks, no cash withdrawal slips, no documentation of any kind.
Wayne Faulconer likewise had no documentation to support the loans. He had no record of receiving any money at any time from his sister, Margaret. Though he testified that some of the money went into the bank, he had no deposit slips or other records indicating the deposit of large sums of cash. He could not identify any deposit in his account as having come from Margaret. He testified that the loans came on various dates in varying amounts, some even and some odd, adding up to $100,000. While both Wayne and Margaret testified that they had kept notations of some sort, neither had retained their records. Margaret testified that she made the loans through her father because she knew he would keep a record of them and protect her, yet no record of the loans was found among the father’s personal effects after his death. He made no change in his will to protect Margaret. The loans extended over a period of at least three years prior to the time Wayne commenced his own business, and there was no explanation as to why Wayne needed to borrow substantial sums during that period of time.
In short, there was a wealth of substantial evidence establishing badge after badge of fraudulent conduct. The evidence supporting the trial court’s findings which we have outlined above was minimal and for the most part highly suspicious and questionable. Examples: a serviceman keeping large amounts of cash — up to $10,000, in his living quarters; ordinary, college-educated civilians keeping $10,000 to $100,000 at home, uninvested and in cash, in a file cabinet; large loans made in cash, by courier, from a sister in California to a brother in Kansas; no living witnesses, except the principals, to the transactions; an accountant who keeps no records and has no memory of dates or amounts of her substantial investments; the transfer of large sums over a period of years without a single trace or record; nothing disclosed about the transactions by Wayne or Margaret to any living witness until after Wayne, the target of substantial litigation, inherits substantial property; backdating the note, the only writing offered to support the obligation; the coincidence that the transfers, ten or fifteen of them, in varying and odd amounts, equaled an even $100,000 — which just happens to be the approximate value of the inheritance.
Under the circumstances, we do not find substantial support in the record for the trial court’s findings and conclusions.
The judgment is reversed and the matter is remanded for a new trial before an assigned judge. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Michael C. Becker was awarded, in a jury trial, the sum of $69,820.65 against defendant Allen County Bank and Trust on plaintiffs claim that the Bank wrongfully disbursed certain funds.
Before proceeding to a statement of the facts, it should be noted the testimony in two key areas was sharply conflicting— namely what the bank officer did or did not agree to do at the time Mr. Becker obtained his loan from the Bank and what role the Bank played in the real estate closing. However, when a verdict is attacked on the grounds that it is contrary to the evidence, the appellate court must review the evidence with all reasonable inferences to be drawn therefrom in the light most favorable to the prevailing party below. See State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, 690 P.2d 380 (1984). With this duty in mind, the facts are summarized as follows. Michael Becker operates a business known as Chanute Iron and Supply Company. On March 19, 1979, Becker and defendants Dean Buman and Randall Marsh entered into a written agreement whereby Buman and Marsh, d/b/a Marsh Construction Company, would build a house on speculation in Iola. Buman and Marsh were customers of Becker’s. Becker was to provide the financing, would be paid two percent above his cost of borrowing the construction money, and would receive a mortgage on the land involved. The same day, Becker deposited $10,000 in the Bank in a new checking account in which each of the three were signatories. Four days later Buman and Marsh, from the account’s funds, purchased the lot in Melody Acres Subdivision for $7,500 on which the house was to be built. Title was taken in the names of Buman and Marsh. Becker did not receive a mortgage thereon.
Either on March 19 or April 20,1979, a meeting was held at the Bank. Attending the meeting were Becker, Buman, Marsh and Ray Pershall (Chief Executive Officer and President of the Bank). The purpose of the meeting was for Becker to secure a $50,000 loan from the Bank for construction of the house in Melody Acres. Becker briefly explained the arrangement he had with the contractors. The bank officer agreed to an unsecured loan of the money — the same to be placed in the construction account on an as-needed basis. The bank officer further agreed that when the house was sold the Bank was to apply the funds received from the sale of the house to cancel out the note and then disburse the balance to Becker, Marsh and Buman in accordance with their agreement. The house was built, but Becker was required to borrow an additional $10,000 from the Bank in July 1979 for construction costs. Additionally, Buman borrowed some $10,000 from the First National Bank of Chanute to complete construction and a first mortgage was given on the real estate as security therefor. Although finished, the house did not sell immediately. In October 1979 the due date of the loan was extended and then again extended in January of 1980.
Meanwhile, a second series of events was unfolding which did not directly involve Becker but which was to substantially affect him. On May 10,1979, Buman and Marsh borrowed $65,000 from the defendant Bank to pay construction costs of a house they were building in Horde’s Addition to the City of Iola. The Bank held a mortgage on the Horde’s Addition property as security. This loan was renewed in November 1979 when $96,160.97 was owed thereon. This note went into default in January 1980. The Bank realized it was undersecured on the Horde’s Addition property and started pressing Marsh and Buman for repayment of the loan. The Bank kept close track of the listing realtor’s progress in trying to sell the Melody Acres home. As Buman and Marsh testified, the Bank mixed the two transactions, looking for the sale of the Melody Acres property to aid its undersecured problem on the Horde’s Addition house. Finally, a buyer was secured for the Melody Acres house. The closing was held at the Bank on or about August 15, 1980, with a bank officer presiding therein. All outstanding bills against the Horde’s Addition house were paid by disbursements by the Bank from the proceeds of the Melody Acres house. Eight lots owned by the purchaser (Richard Knewtson) were taken in trade. The Bank prepared the closing statement. The sale price was $95,886.55. Specifically, the following occurred at closing: Credit of $23,500 was allowed for the lots (a figure the Bank participated in determining); and the balance was paid in cash. The Bank disbursed the proceeds as follows:
Caldwell Floor Covering $ 1,883.23
Gray Lumber Company 5,524.93
Orrs Color Center 820.96
K-K Electric 1,458.79
Iola Ready Mix 667.74
Nelson Quarries 17.34
Immel & Immel 35.00
Iola Abstract Company 708.00
First National Bank of Chanute 11,675.15
Klotz Realty 4,780.00
Apt & Apt (Horde’s Lbr. Co.) 6,554.00
Allen County Treasurer 9,442.64
Allen County Bank & Trust 28,818.77
8 lots - City of Gas, Kansas (mortgage) 23,500.00
Total $95,886.55
All sums disbursed to materialmen were for supplies furnished to the Horde’s Addition house. The disbursement to the Allen County Treasurer was for payment of back taxes on the City of Gas lots. The lots themselves were disbursed to Marsh and Buman. Becker was not present at the closing and the Bank never sought nor secured his approval of the disbursements. The $28,818.77 the Bank disbursed to' itself was credited to the Marsh-Buman loan on the Horde’s Addition house. As previously stated, the closing and disbursements occurred on or about August 15, 1980. Prior to the closing the Bank had, on July 25, 1980, commenced an action against the two men for collection of the promissory note due on the Horde’s Addition house.
Becker ultimately learned that none of the. proceeds from the Melody Acres house had been credited against his loan to the Bank and brought this action on September 10, 1980, against the Bank and the two contractors. As against the Bank, Becker claimed it breached its agreement with him and had wrongfully disbursed the funds. At the time of the closing, Becker owed the Bank $69,820.65 on the notes.
The case was tried to a jury and the verdict held that the Bank had misapplied the following:
1. Caldwell Floor Covering $ 1,883.23
2. Gray Lumber Co. 5,524.93
3. Orrs Color Center 820.96
4. K-K Electric 1,458.79
5. Iola Ready Mix 667.74
6. Nelson Quarries 17.34
7. Immel & Immel 35.00
8. Iola Abstract Co. 225.00
9. Klotz Realty 940.00
10. Horde’s Lumber Co. 6,554.00
11. Allen County Treasurer 9,442.64
12. Allen County Bank & Trust 28,818.77
13. Credit on lots taken in trade 23,500.00
Total $79,888.40
The trial court subtracted the Horde’s Lumber Co. item of $6,554 on the basis the lumber company had a judgment against Marsh and Buman and affirmed the verdict as modified in the amount of $73,334.40. No claim of error is made relative to the deletion of the Horde’s Lumber Co. disbursement. Inasmuch as the misapplied funds were greater than the debt owed by Becker to the Bank on the note, the trial court reduced the judgment to the amount due on the note ($69,820.65) and held the note was then paid in full. The Bank appeals from said judgment.
For its first claim of error the Bank contends there was insufficient evidence to support a finding the Bank agreed to credit the proceeds of the future sale of the home against the Becker loan. As previously noted, there was conflicting testimony on this issue, but there was sufficient evidence to support a finding that the agreement existed. Becker’s testimony fully supports the existence of the agreement.
For its second issue the Bank contends it acted only as an escrow agent in the sale of the house and was, accordingly, without control or discretion in the disbursement of the funds and the Bank is entitled to judgment as a matter of law. There was evidence that the Bank acted as more than an escrow agent and had taken an active role in bringing about the sale. The Bank disbursed $28,818.77 of the proceeds to itself for an undersecured loan which was not related to the transaction. It had a financial interest in paying off the materialmen supplying material in the Horde’s Addition house construction. Payment of these debts improved its own security position relative to the Horde’s Addition loan. As will be recalled, the Bank had a suit pending against Marsh and Buman at the time of closing to collect that loan. Further, the Bank had previously agreed as a part of the Becker loan to credit the Becker loan first with the proceeds. The Bank made no effort to secure Becker’s approval of the disbursements which were contrary to its agreement with Becker. We find this issue is without merit.
For its third issue the Bank claims the amount it disbursed to itself from the proceeds ($28,818.77) was protected by the doctrine of lis pendens. K.S.A. 60-2201(a) provides:
“When a petition has been filed in the district court pursuant to chapter 60 of the Kansas Statutes Annotated, the action is pending so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiffs claim; but such notice shall be of no avail unless the summons be served or the first publication made within ninety (90) days after the filing of the petition.”
There are several difficulties with this argument. The Bank had sued Marsh and Buman at the time of the closing to foreclose its mortgage on the Horde’s Addition property. The proceeds involved were from the Melody Acres property. Hence, the subject of the Bank’s action was not the Melody Acres property. Further, the Bank could not legitimately use lis pendens arising from its own lawsuit to breach its prior agreement with Becker. Further, Becker’s interest in the proceeds was acquired long before the Bank’s action was filed.
For its fourth issue the Bank argues that it was error to submit the matter of the City of Gas lots to the jury for consideration. The Bank argues those lots were traded in on the sale and, in essence, did not constitute proceeds which could be “misapplied.” This point is wholly without merit. The lots were clearly proceeds from the sale and, under the agreement, Becker had an interest in them.
For its fifth issue the Bank claims there was insufficient evidence to submit instructions on the doctrine of constructive trust to the jury.
The jury was instructed as follows:
“INSTRUCTION NO. 19
“A constructive trust arises where a person by any form of unconscionable conduct or questionable ethics obtains property which in 'equity and good conscience he ought not to possess or which justly belongs to another.
“INSTRUCTION NO. 20
“Unconscionable conduct or questionable ethics is conduct which is one-sided, oppressive, unfairly surprising, or conduct that takes advantage of unequal bargaining or economic power.
“Mere disparity of bargaining strength, without more, is not enough to make out a case of unconscionability. Some element of deception or substantive unfairness must be shown.”
The Bank does not contend these instructions constitute an erroneous statement of the law — only that the evidence was insufficient to support submitting the doctrine of constructive trust to the jury. Without reiterating what has previously been stated relative to the facts adduced at trial, we conclude there was sufficient evidence to support instructing the jury on the doctrine of constructive trust.
For its sixth issue the Bank argues the agreement (if any) between Becker and the Bank was unenforceable as violative of the Statute of Frauds.
K.S.A. 33-106 provides:
“Specific cases where writing required. No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person; or to charge any executor or administrator upon any special promise to answer damages out of his own estate; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
The Bank argues the agreement was one “to answer for the debt . . . of another.” Clearly, that was not the agreement. Next, the Bank argues that the agreement created an equitable mortgage on real estate and hence must be in writing. This argument is equally unpersuasive. If mortgages are fully set forth in writing, the doctrine of equitable mortgage never comes into play. As we stated in Garnett State Savings Bank v. Tush, 232 Kan. 447, 657 P.2d 508 (1983):
“Where one party advances money to another upon the faith of an agreement by the latter to secure its payment by a mortgage upon specified lands, but which mortgage is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of the execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. [Citation omitted.]”
“The form of an agreement by which security is given for a debt is unimportant. If the purpose and intention behind the transaction is to secure a debt, equity will consider the substance of the transaction and give effect to that purpose and intention. A court sitting in equity is not governed by the strict rules of law in determining whether a mortgage has been created. The lien follows if the evidence discloses an intent to charge real property as a security for an obligation. [Citation omitted.]”
“One to whom the owner of land is indebted, and who orally agrees to and does lend money to the landowner with which to pay some of his debts, and who promises to and does pay other of the landowner’s debts, and promises to and does become surety for the landowner for other of his debts, on the agreement of the landowner that he will deed to the other certain lands to secure him for the debts, money loaned, money paid and obligations incurred, becomes an equitable mortgagee of the lands agreed to be conveyed from the time of making such agreement. [Citation omitted.]” Syl. ¶¶ 2, 3, 4.
By their inherent nature, equitable mortgages are not within the Statue of Frauds.
For its seventh issue the Bank claims the trial court erred in directing a verdict on its cross-claim against Buman. This issue involves a whole new set of facts concerning the Bank’s relationship with Buman and Marsh. Little would be gained by setting forth the facts herein relative to this claim. It is sufficient to state that we have carefully considered the issue and, although the trial court may have based its dismissal on the wrong grounds, there is a valid reason for the court’s action. The cross-claim sought indemnification for any judgment which might be rendered against the Bank on Becker’s petition. Becker’s claim against the Bank was based solely on the alleged wrongdoing of the Bank itself in violating the agreement between the Bank and Becker. Under these circumstances, an action for indemnification would be inappropriate. See generally Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983).
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
McFarland, J.:
This is a dispute between plaintiff J. A. Tobin Construction Co. and defendant Secretary of Transportation concerning which should bear the cost of corrective work on a defective concrete culvert.
Plaintiff was the general contractor on a highway construction project. As a part of its performance under the contract, plaintiff (through a subcontractor) constructed a concrete box culvert. The contract required that, prior to the pouring of the concrete, a Kansas Department of Transportation (KDOT) inspector was to inspect the work. One of the items to be inspected was the placement of the reinforcing steel (rebar). This inspection occurred in October of 1982 and was accomplished by two inspectors who were also present during the subsequent pouring of the concrete. Neither inspector noticed that the rebar had been improperly placed. A year later, and prior to final acceptance of the project, a KDOT inspector observed cracks in the top concrete mat. An investigation revealed the cause was the improperly placed rebar. The cost of the corrective work was $21,501.00. Had the improper placement of the rebar been discovered prior to the pouring of the concrete, the corrective work would have cost $1,000.00. Plaintiff sought a KDOT change order before proceeding. Plaintiff s position (then and now) was that it was the fault of the inspectors that the error had not been discovered and hence it should only be held responsible for $1,000 of the cost. KDOT declined to issue a change order on the basis the work had not been formally accepted at the time of the discovery of the defect and the correction was, therefore, the contractor’s responsibility. Plaintiff exhausted its administrative remedies. Plaintiff did the corrective work and seeks, in this action, to recover $20,501.00 of the cost thereof. The district court entered summary judgment, on stipulated facts, in favor of KDOT and plaintiff appeals therefrom.
Pertinent portions of the contract and specifications are set forth as follows:
“104.01 INTENT OF CONTRACT — The intent of the Contract is to provide for the construction and completion in every detail of the work described. The Contractor shall furnish all labor, materials, equipment, tools, transportation and supplies required to complete the work in accordance with the plans, specifications and terms of the Contract.”
“105.11 DUTIES OF THE INSPECTOR — Inspectors employed by the Secretary shall be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work and to the preparation, fabrication or manufacture of the materials to be used. The Inspector is not authorized to alter or waive the provisions of these specifications or the contract. The Inspector is not authorized to issue instructions contrary to the plans and specifications, or to act as foreman for the Contractor, however, he shall have the authority to reject work or materials until any questions at issue can be referred to and decided by the Engineer.” (Emphasis supplied.)
“105.12 INSPECTION OF WORK — All materials and each part of detail of the work shall be subject to inspection by the inspector and the Engineer. The Engineer shall be allowed access to all parts of the work and shall be furnished with such information and assistance by tire Contractor as is required to make a complete and detailed inspection.
“If the Engineer requests it, the Contractor, at any time before acceptance of the work, shall remove or uncover such portions of the finished work as may be directed. After examination, the Contractor shall restore said portions of the work to the standard required by the specifications. Should the work thus exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed shall be paid for as extra work; but should the work so exposed or examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed shall be at the Contractor’s expense.
“Any work done or materials used without supervision or inspection by an authorized Secretary’s representative may be ordered removed and replaced at the Contractor’s expense unless the Secretary’s representative failed to inspect after having been given reasonable notice in writing that the work was to be performed.”
“105.13 REMOVAL OF UNACCEPTABLE AND UNAUTHORIZED WORK — All work which does not conform to the requirements of the Contract shall be considered unacceptable, unless otherwise determined acceptable under the provisions in Subsection 105.03.
“ Unacceptable work, whether the result of poor workmanship, use of defective materials, damage through carelessness or any other cause, found to exist prior to the final acceptance of the work, shall be removed immediately and replaced in an acceptable manner. This clause shall have full effect regardless of the fact that the defective work may have been done or the defective materials used with the full knowledge of the Inspector. The fact that the Inspector in charge may have previously overlooked such defective work shall not constitute a,n acceptance of any part of it.” (Emphasis supplied.)
“105.17 ACCEPTANCE — (a). Partial Acceptance. If at any time during the prosecution of the project the Contractor substantially completes a unit or portion of the project, such as a structure, an interchange, or a section of road or pavement, he may request the Engineer to make final inspection of that unit. If the Engineer finds upon inspection that the unit has been substantially completed in compliance with the Contract he may accept that unit by notifying the Contractor in writing that the work is acceptable and the Contractor may be relieved of further responsibility for that unit specified by the .partial acceptance. Such partial acceptance shall in no way void or alter any of the terms of the Contract.”
“704.03 — CONSTRUCTION REQUIREMENTS — . ....
“(c) Placing, Supporting, and Fastening. All reinforcing steel shall be accurately placed and during the placing of concrete, firmly held by approved supports in the position shown on the Plans. Reinforcing bars shall be securely fastened together. Reinforcement placed in any member shall be inspected and approved before any concrete is placed.”
“107.16 CONTRACTOR’S RESPONSIBILITY FOR WORK — Until final written acceptance of the project work by the Engineer, the Contractor shall have the charge and care thereof and shall take every precaution against damage or loss to any part of the project work. The Contractor shall assume all risks of loss and damage to any portion of the project work occasioned by any cause which is within the control of the Contractor and of losses and damages resulting from the following occurrences: fire, lightning, windstorm, hail, vandalism, malicious mischief, falling objects, explosion, flood, freezing and thawing and faulty workmanship. The Contractor shall rebuild, repair, restore and make good all damages to any portion of the project work occasioned by the above described causes and shall bear the expense thereof except for damáges other than as described above which are beyond the control of the Contractor to prevent, including but not restricted to acts of the public enemy or governmental authorities.” (Emphasis supplied.)
The plaintiff contractor admits the culvert was defective as a result of its improper placement of the rebar. However, it contends that it is only responsible for that portion of the cost of replacement attributable to cost of correction had the error been discovered prior to the pouring of the concrete ($1,000.00 of the total $21,501.00). Plaintiff, in essence, claims:
1. The KDOT inspections required by the contract are for the contractor’s benefit and it had a right to rely thereon;
2. Failure of the KDOT inspectors to observe the faulty workmanship in the placement of the rebar absolves the contractor for the cost of remedial work after the concrete was poured;
3. KDOT is estopped to deny the work change order.
The arguments of the contractor are without merit. Section 105.11 states an inspectoras not authorized to alter or waive any requirements of the plans or specifications or act as foreman for the contractor. Section 105.13 clearly places responsibility for correcting defective work discovered prior to final acceptance on the contractor despite the failure of the inspector to discover it or even with the inspector’s knowledge thereof. Section 107.16, again, places the responsibility on the contractor for damages as a result of faulty workmanship. Section 105.17, relied upon by plaintiff, is inapplicable. The plaintiff did not request, nor did the engineer inspect or make, a final acceptance of the work.
Plaintiff claims it relied on the inspectors’ inspection of the rebar, and KDOT should be estopped from refusing to issue the change order.
Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction, and nothing can be supplied by mere intendment. Ram Co. v. Estate of Kobbeman, 236 Kan. 751, 696 P.2d 936 (1985).
The inspections required by the contract were for the benefit of KDOT, not the contractor. The inspectors were without authority to waive the specified placement of the rebar (§§ 105.11
and 105.13). Their failure to notice the error and call it to the attention of the contractor was not something upon which the contractor could have “rightfully relied” so as to give rise to the doctrine of equitable estoppel. Approval by the inspectors is not the equivalent of final acceptance by the engineer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Eugene L. Miller, Sr., to quiet title of land within the operating right-of-way of defendant St. Louis, Southwestern Railway Company. The trial court entered judgment in favor of the defendant railroad and plaintiff appeals therefrom.
In 1906 the Chicago, Rock Island and Pacific Railroad Company acquired an operating right-of-way by condemnation to a portion of Blocks 45, 46 and 65, Grandview Addition, to the City of Pratt. The tract lies south of and adjacent to the railroad’s main line, is situated approximately 75 feet from the actual track and consists of approximately one acre. Between 1919 and approxi mately 1965 the tract was used by the railroad for livestock holding facilities and contained stock pens, hay barns, scales and a sale barn. Between 1965 and 1967 the Rock Island phased out its livestock shipping operations on the tract. In 1969 plaintiff purchased Blocks 45, 46 and 65 from the fee owner subject to Rock Island’s interest therein.
The former livestock facilities on the one-acre tract had fallen into disrepair and suffered from neglect. Debris from the demolished buildings and fences littered the tract and tall weeds had taken over. Plaintiff sought assistance from the City of Pratt in cleaning up the tract, but the City advised plaintiff he should contact the railroad. Local Rock Island officials referred defendant to the company’s Chicago headquarters. Plaintiff was concerned that the property was unsightly and a fire hazard as well. He wrote the Chicago office about the situation and received a letter back stating the company did not intend to clean up the property. The only evidence at trial of this exchange of communications was plaintiff s recall and an envelope postmarked October 6, 1969, addressed to plaintiff and bearing a Rock Island return address.
After receiving the reply letter, plaintiff undertook the cleanup himself. He placed permanent steel bolts on the boundary lines, cut the weeds, picked up the debris, planted alfalfa, trees and a garden and stored some equipment on the tract. Plaintiff has paid the taxes on the tract since 1969. In 1980 the Southern Pacific Transportation Company purchased Rock Island and all railroad property was assigned to St. Louis, Southwestern Railway Company, a Southern Pacific subsidiary. On November 14, 1984, the plaintiff brought this quiet title action asserting three theories: adverse possession, abandonment, and estoppel. As previously stated, the district court, following a bench trial, entered judgment in favor of the railroad.
ADVERSE POSSESSION
The difficulty with plaintiff s adverse possession theory lies in the nature of the interests held by him and the railroad. A similar assertion was made in Harvey v. Railroad Co., 111 Kan. 371, 207 Pac. 761 (1922).
In Harvey a railroad condemned a tract of land adjoining its 100-foot right-of-way in 1879 for the purpose of maintaining railroad sidetracks, depots, workshops, water station and stock yards. Only the 100-foot right-of-way had actually been used for railroad purposes. Plaintiff, the fee holder of the acreage, brought suit to quiet title in the tract under the doctrine of adverse possession. Plaintiff showed that between the time of the taking and the time of suit, he and his predecessors had fully occupied the tract. The property had been utilized at one time as stables and for county fair buildings. Plaintiff had a livestock sale barn on the property.
In rejecting plaintiff s adverse possession theory, the court in Harvey reasoned:
“One whose property is subjected to condemnation for railway or other public uses is none the less the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The party for whose use the condemnation was made has what is called the dominant estate. And while the fee holder, after condemnation and compensation, may not interfere with the rights of the holder of the dominant estate, yet as owner he may still continue to use the property for any purpose which does not frustrate the public aims and ends for which the property was condemned.” 111 Kan. at 372.
Further, in explaining why plaintiffs claim of adverse possession would not lie, the court stated:
“But since they [successive fee title holders] were within their rights in using and occupying the property, and because hitherto the defendant and its predecessors have not needed all the property condemned in 1879, there could be no such thing as adverse or inconsistent use, nor could there be adverse possession for fifteen years so as to found an independent title and thus bar the railway company of its rights acquired by condemnation. Before the fifteen years’ bar could give rise to a right to exclude the defendant, it would be necessary to show that during that time the plaintiff had occupied the property to the prejudice of the defendant, that the defendant during that interval had needed the property for railway purposes but had been excluded therefrom by the plaintiff or his predecessors in title. It was not necessary for the railway company to make some pretended use of all the condemned property, to the exclusion of the successive fee-title holders, in order to preserve its rights.” 111 Kan. at 373.
The Court of Appeals relied primarily upon Harvey in Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, 675 P.2d 375 (1984). There, a railroad condemned a 100-foot right-of-way in 1886, including three tracts of land owned by the defendant. The three tracts had not been used for railroad purposes for more than thirty years and defendant (and his predecessors in title) farmed the land during that time. The railroad brought suit to determine the rights of the parties in the three tracts of land. Defendant asserted ownership under the doctrine of adverse possession.
The Court of Appeals, in Humberg, determined that the principles discussed in Harvey were still the law of this state and defendant’s use and occupancy of the land were not adverse to the interest of the railroad. The court reaffirmed the rule that when a railroad acquires land by virtue of an easement, condemnation, right-of-way or other conveyance, the railroad does not obtain a fee simple title to the right of way.
Plaintiff may have enjoyed full use of the property since 1969 but such usage was not hostile or adverse to the railroad save one incident in 1980. The 1980 occurrence, as testified by plaintiff, involved an attempt by defendant railroad to store equipment on the property during a track refurbishing program. Plaintiff denied railroad employees the use of the property at that time. Any claim of adverse possession could only commence in 1980 — far short of the fifteen year requirement set forth in K.S.A. 60-503. We conclude the trial court did not err in refusing to find plaintiff acquired any title through adverse possession.
ABANDONMENT
What constitutes abandonment of a railroad right-of-way was discussed in some depth in Martell v. Stewart, 6 Kan. App. 2d 387, 628 P.2d 1069 (1981). The Court of Appeals stated:
“The cardinal principle to follow in determining when a railroad right-of-way is abandoned is that there must be satisfaction of what has been termed the ‘unitary rule.’ Simply stated, both intent to abandon and action to carry out that intent must combine. In Pratt v. Griese, 196 Kan. 182, 409 P.2d 777 (1966), the rule was stated by adopting a quotation from 74 C.J.S., Railroads § 117b, pp. 541-42:
“ ‘Whether a right of way has been abandoned by a railroad company is largely a question of intent, and it is generally held that in order to constitute an abandonment there must be an intent to relinquish, together with external acts by which the intent is carried into effect.’
“American Jurisprudence treats the principle a bit differently. It states that the acts ‘must be of a character so decisive and conclusive as to indicate a clear intent to abandon’ and that intent ‘may be proved by an infinite variety of acts.’ 25 Am. Jur. 2d, Easements and Licenses § 103, pp. 507-08. Further, it states the intent must be ‘neither to use nor to retake the property’ and the act must be ‘clear and unmistakable’ and it must show a ‘purpose to repudiate . . . ownership.’ It claims that ‘relinquishment of the possession’ is not an abandonment as the act must indicate a lack of any interest in the property. 1 Am. Jur. 2d, Abandoned, . . . Property § 16, pp. 16-17.” 6 Kan. App. 2d at 389.
In the case before us a railroad official (formerly with Rock Island and now with defendant railroad) testified unequivocally that neither railroad ever had any intent to abandon the property. Plaintiff argues non-use between 1968 and 1984 (date of suit) plus receipt of the letter by him from Rock Island stating it would not cut down the weeds render the trial court’s refusal to find abandonment erroneous. Plaintiff s own testimony relative to the railroad’s attempted usage of the property in 1980 is inconsistent with his claim of abandonment. The trial court’s finding there had been no abandonment is supported by substantial evidence and will not be disturbed on appeal.
ESTOPPEL
Plaintiff argues that by its conduct the railroad is estopped from claiming ownership in the property.
Equitable estoppel exists when a party, by its acts, representations, admissions, or silence, induced another party to believe certain facts existed upon which it detrimentally relied and acted. Turon State Bank v. Bozarth, 235 Kan. 786, 789, 684 P.2d 419 (1984).
After the railroad declined to cut the weeds in 1969, plaintiff cleaned up the property and has used it for his own purposes since that date. Additionally, he has paid the real estate taxes on the property. As the owner of the servient estate in the property, he had the right to use the property for any purpose which does not interfere with the rights of the holder of the dominant estate (the railroad). We conclude the trial court did not err in holding the doctrine was inapplicable under the facts herein.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action brought by the Board of Education of Unified School District No. 259 (USD 259 or Board) against Kansas-National Education Association (K-NEA) and National Education Association-Wichita (NEA-W). K-NEA and NEA-W appeal from a judgment in favor of USD 259.
This dispute arose as a result of a $354,839.83 divisible surplus (refund) paid by Blue Cross and Blue Shield of Kansas, Inc., (BC-BS) to the school district as trustee. BC-BS was an indispensable party before the district court because it was obligated by contract to account and determine the reserves which resulted in the divisible surplus. The surplus was in BC-BS possession when this suit was filed. Since that time, however, the surplus has been refunded to USD 259 and held in trust under supervision of the district court. BC-BS is no longer a party to this action pursuant to the “Stipulation for Voluntary Dismissal” filed with this court.
NEA-W is the exclusive bargaining agent for the teachers employed by USD 259. NEA-W negotiated a contract with USD 259 in 1981, which was ratified by a majority of the USD 259 teachers and signed by the Board. The contract ran from August 1, 1981, to July 31, 1983. Teachers’ health insurance was negotiated and became a part of that contract. As a result of this negotiation, the Board entered into a group health insurance contract with BC-BS. That negotiated contract contained a divisible surplus rider, the provisions of which are set forth later in this opinion.
On February 1, 1982, the contract between the teachers and USD 259 was amended by mutual consent.
Article Nine (IX), Section F, paragraphs 1 through 3 of the amended contract relate to health insurance benefits:
“Paragraph 1: Through January 31, 1982, the Board shall contribute $60 per month for each teacher employed full time toward the payment of premiums in the Board provided group health insurance plan. Effective February 1, 1982, and for the remainder of the term of this agreement, the Board shall contribute $65 per month for each teacher employed full time who enrolls in the Board provided health insurance plan toward payment of premiums for the plan selected.
“Paragraph 2: If a teacher enrolls in the Board provided group health insurance plan and the Board contribution exceeds the amount of the health insurance premium in the plan selected, then such excess shall be paid to that teacher as extra earnings in x'egular payxoll checks and shall be subject to all applicable deductions.
“Pai'agraph 3: If a teacher does not enx-oll in the Board provided group health insui'ance plan, the Board shall contribute $60 per month for each teacher employed full time. Such contribution shall be paid to that teacher as extra earnings in regular payroll checks and shall be subject to all applicable deductions.”
Thus, as we can see under the negotiated contract, the Board agreed to pay $60 per month per teacher ($65 per month after February 1, 1982) toward tire cost of the group health insurance plan. Participating teachers paid any amount over and above the amount paid by the Board. Those teachers who chose not to enroll in the BC-BS plan received $60 per month in additional salary.
The “plan year” for BC-BS begins on November 1 each year and ends on October 31 of the following year. Thus, the 1980-81 “plan year” commenced on November 1, 1980, and ended on October 31,1981. Similarly, the 1981-82 “plan year” commenced on November 1, 1981 and ended October 31, 1982.
During the first plan year of the teachers’ contract, five USD 259 employee groups participated in the BC-BS plan, one group of which was the certified employees (teachers) represented by NEA-W. All of the uncertified employees voluntarily withdrew from the BC-BS plan as of September 31, 1981. They were not parties to the teachers’ contract and elected health insurance coverage under a board of education self-insurance plan. Therefore, from October 1, 1981, through October 31, 1982, the certified employees were the sole participants in the BC-BS health insurance plan made available by the Board.
The premiums collected by BC-BS for the plan year November 1,1981, to October 31, 1982, exceeded total claims, expenses and reserves by the amount of $354,839.83. This amount is referred to as “divisible surplus.” BC-BS refunded the surplus to the Board, as trustee under court supervision. The distribution of the divisible surplus accumulated under the health insurance policy is the subject of the present controversy.
The group contract between the Board and BC-BS contained a “Divisible Surplus Rider,” which provided for the distribution of divisible surplus as follows:
“C.l Divisible Surplus is distributed in this manner:
“a. To meet the Contract Holder’s minimum group reserve needs (if any) for the Blue Cross of Kansas portions of the Group Contract(s).
“b. The remainder, if any, is paid in cash to the Contract Holder or upon written request applied as an adjustment of future dues.
“C.2 Any part of the Divisible Surplus that is paid in cash and is in excess of the Contract Holder’s share of the dues shall be applied for the sole benefit of the Subscribers.
“C.3 Distribution of any Divisible Surplus in accordance with this Rider shall completely discharge Blue Shield of Kansas from liability with respect to the adjustment of dues so distributed.”
The Board filed the present action on January 11, 1983, seeking a declaratory judgment that the surplus be determined to be a mandatorily negotiable item under K.S.A. 72-5413(1) in the next contract negotiated between the Board and teachers.
The district court found for the Board and held that the premium refund is a mandatorily negotiable item pursuant to K.S.A. 72-5413(1) and the teachers currently employed by USD 259 are entitled to share in the benefit of the divisible surplus in the amount of $268,542.55 plus seventy-five percent (75%) of the interest earned to date. The court further determined that the Board is the contract holder and, as shch, is entitled to negotiate how the surplus will be applied for the benefit of the group.
The first issue on appeal is whether the trial court erred in finding that the manner of distribution of surplus health insurance premiums is mandatorily negotiable pursuant to K.S.A. 72-5413(1).
There is no question the health insurance benefits provided under the 1981-83 contract between the teachers and the Board were mandatorily negotiable (K.S.A. 72-5413) and accordingly, were negotiated by the parties. That is not the issue here. The issue here is whether a divisible surplus accumulated under the health insurance policy purchased by the Board pursuant to the negotiated agreement is outside the terms of the negotiated contract and subject to additional negotiation. We think not. The surplus is a product or result of the contract previously negotiated. The insurance policy anticipated such a surplus by including a Divisible Surplus Rider. The insurance benefits under which the divisible surplus was accumulated were negotiated and they are therefore not subject to renegotiation.
The next issue is who is entitled to receive the refund of the divisible surplus under the BC-BS policy.
Appellants argue that only those individuals enrolled in the BC-BS plan on October 31, 1982, are entitled to share in a prorated distribution of the divisible surplus. The Board, however, contends the surplus is a “plan asset” available for the benefit of the group which is currently the subscriber to the health insurance plan. The Board reasons that the essence of group insurance coverage is the pooling of risk and benefits as a group.
The trial court granted judgment in favor of the Board, holding that those teachers still in the employ of USD 259 and eligible for the surplus in issue constitute a voluntary association entitled to share as a group in the benefit of the divisible surplus.
Appellants rely upon Attorney General Opinion No. 81-97, dated April 21, 1981, for the proposition that the individual teachers participating in the health insurance plan on October 31, 1982, are entitled to the refund.
The Attorney General opinion is predicated upon a fact situation where there was no divisible surplus rider in the health insurance contract such as exists in this case. Thus, it is distinguishable from the present controversy. However, the Attorney General opinion states that had the health insurance policy in question contained such a rider, the language of the rider would control the disposition of the refund. We agree with that statement and hold that where a contractual provision in a group health insurance plan specifies the method of distribution of a divisible surplus, that provision controls.
Under the provisions of the Divisible Surplus Rider of the BC-BS policy, any surplus is to be “paid in cash to the Contract Holder or upon written request applied as an adjustment of future dues.” The Board, as “Contract Holder,” makes no claim to the refund and the teachers have declined to have the surplus applied as an adjustment of future dues. Accordingly, we are concerned with the section of the rider which provides that any excess refund “shall be applied for the sole benefit of the Subscribers.”
The parties disagree as to who are the “subscribers” referred to in the policy. The policy defines subscriber as “the person named on the Identification Card.” It also says,
“X.l Subscriber also means the following persons under a Family Membership:
a. The husband or wife of the person named on the Identification Card;
and
b. Each unmarried dependent child by birth or adoption who is:
(1) under age 21; or
(2) Over age 21 but is not capable of self-support . . . .”
The policy makes no provision for the teachers as a group to be subscribers. The group is not issued an identification card. The policy recognizes only single members and family members as subscribers. We hold the BC-BS contract defines subscribers as the individuals who are covered by the health insurance.
Let us now turn to the question of which individuals were covered by the insurance and are thus entitled to the refund. As previously noted, the surplus occurred as the result of lower use of insurance benefits by the subscribers than was anticipated when the premiums were determined. The subscribers overpaid their premiums. Hence, those who overpaid their insurance premiums created the surplus and should receive the refund.
Appellants argue that the subscribers on the last day of the BC-BS contract year, October 31, 1982, are entitled to the entire surplus. Appellants and appellee both present an alternate plan which is quite similar. It provides that the divisible surplus be divided among all the subscribers during the two-year term of the teachers’ contract. The trial court adopted a version of the alternate proposals.
The “Divisible Surplus Rider” of the policy was made a part of the policy to resolve this problem, and the “Retrospective Worksheets” of BC-BS show how BC-BS calculated the surplus. Let us examine each of these items.
The “Divisible Surplus Rider” provides:
“B. Determination of Divisible Surplus. Divisible Surplus accrued, if any, will be determined as of each anniversary of the Contract Date by Blue Shield of Kansas.” (Emphasis added.)
The rider shows that pursuant to the contract it is BC-BS’s obligation to determine the divisible surplus at the end of each contract year. It logically follows that the determination is calculated from the actuarial experience of the subscribers during the preceding year.
The BC-BS “Merit Rated-Retrospective Worksheets,” included in the record on appeal, indicate the manner in which BC-BS calculated any refund to be made at the end of the plan year. A divisible surplus results where premiums collected for a plan year exceed total claims, expenses and reserves for that year. The worksheet for plan year November 1, 1980 through October 31,1981, confirms that no divisible surplus resulted that year. However, the worksheet for plan year November 1, 1981, through October 31, 1982, shows a divisible surplus of $354,839.83. The contract placed the burden upon BC-BS to determine the amount of refund, if any, and the parties are bound by that determination.
Therefore, we have no hesitation in concluding that the subscribers for the period from November 1, 1981, through October 31, 1982, are entitled to a refund of the premium overpayment, the divisible surplus. Even though the amount was not determined until the end of the year, we are persuaded all of those whose contributions resulted in the overpayment should share in the refund. We hold the divisible surplus of $354,839.83 plus accrued interest be refunded to the 1981-82 subscribers proportionate to the premium paid by each for that contract year.
The judgment of the trial court is reversed and this case remanded for further proceedings to determine the names of the individual subscribers to the BC-BS health insurance policy for the period November 1, 1981, to October 31, 1982, and the premium paid by each, with the refund of the divisible surplus apportioned accordingly. | [
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The opinion of the court was delivered by
Holmes, J.:
This case is before the court on a petition for review of the decision of the Court of Appeals, Case No. 57,903, In re Marriage of Arndt (unpublished opinion filed January 30, 1986). We affirm the decision of the Court of Appeals, which affirmed the decision of the trial court. The issue before the court involves the interpretation and enforcement of a property settlement agreement entered into by the parties in their divorce proceedings.
Larry J Arndt, appellant, and Estella L. Arndt, appellee, were married on June 23, 1956. This union produced five children, all of whom were adults and self-supporting at all times pertinent to this action. The parties were divorced on May 18, 1983. The terms of the divorce decree incorporated a property settlement agreement which had been entered into by the parties. This agreement included the disposition of the couple’s former residence and provided;
“The parties further agree that the WIFE shall make all mortgage payments upon the home which is legally described as follows, to-wit:
[Description omitted.]
That the WIFE may remain in said home until such time as she remarries or the parties sell the property by mutual agreement, or until she moves out, whichever is the sooner. The HUSBAND agrees to pay one-half of all maintenance expenses on the house for structural repairs.” (Emphasis added.)
The agreement contains no provision as to the disposition of the property in the event the wife does remarry or decides to move out but both parties seem to agree that in such case the intent was that the property would be sold and the proceeds split between them. Title to the property is held by the parties in joint tenancy. The agreement was prepared by Larry Arndt’s trial counsel. Estella was not represented and appeared pro se at the divorce hearing. No appeal was taken by either party.
The difficulty in this case stems from Estella’s post-divorce cohabitation with Don Lichti. The record indicates that Lichti moved into the Arndt home in July of 1984 and presumably remains to this day. Lichti pays Estella $200.00 per month rent and pays one-half of certain household expenses. Estella and Lichti are not married. On December 13, 1984, Larry filed a motion to force sale of the Arndt residence, based on Estella’s extramarital cohabitation. The motion was heard on January 8, 1985, and at the conclusion of the hearing the court denied Larry’s motion, holding that the property settlement agreement did not preclude extramarital cohabitation. The district court also awarded Estella $250 for attorney fees.
Appellant’s position on appeal appears to be twofold: (1) Estella’s cohabitation with Mr. Lichti is immoral and against public policy, and (2) as Lichti is providing some support and maintenance to Estella, the continued occupancy of the house by Estella violates the intent of the agreement. The Court of Appeals, in affirming the district court, stated:
“It is conceded that Estella is now living in the house in a marital relationship wifh a male friend who pays $200 per month rent and splits the cost of groceries and the utilities.
“K.S.A. 60-1610(b)(3) provides in part:
‘Matters settled by an agreement incorporated in the decree, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.’
“With respect to matters not pertaining to child custody, support or education, case law interpreting this subsection ‘makes clear that matters settled by a contractual separation agreement which is subsequently adopted by the court as part of the divorce decree are not subject to later modification except as the agreement itself provides or by consent of the parties.’ Rasure v. Wright, 1 Kan. App. 2d 699, 702, 573 P.2d 1103 (1977), rev. denied 225 Kan. 845 (1978).
“Notwithstanding this authority, Larry contends that the rent money received by Estella is being used for her support and maintenance, and since the money is derived from the house in which he owns a one-half interest, he is to that extent being compelled to contribute to her support. He further argues that it is against public policy to require that he continue to contribute to the support of his former wife who is living with a paramour who is also contributing to her support.
“Larry relies primarily on Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967), where the Kansas Supreme Court, based on public policy grounds, terminated the former husband’s obligation to pay alimony following his former wife’s remarriage. In Herzmark, however, the alimony award provided that it was to be paid ‘until the further order of the court’ (199 Kan. at 49), and the award was not part of a settlement agreement incorporated in the decree. Consequently, the Herzmark court was not subject to the limitations imposed by K.S.A. 60-1610(b)(3). Thus, that court had the authority to modify the decree.”
In Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977), this Court refused to terminate the payment of alimony on public policy grounds where it was shown that the ex-wife was living with a paramour. In the instant case the agreement of the parties is clear, as far as it goes, and under K.S.A. 1985 Supp. 60-1610(b)(3) as well as our prior case law it is not subject to modification by the courts.
One other matter remains to be determined. Appellee Estella seeks an award of attorney fees under Supreme Court Rule 7.07(b) (235 Kan. lxxv) for defending the appeal in this Court and in the Court of Appeals. We do not find that the appeal in this case was frivolous and therefore the request for an allowance of fees is denied.
The judgment of the Court of Appeals and the judgment of the district court are affirmed. | [
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals are from a judgment of the district court of Reno County which vacated and set aside orders of the state corporation commission as being unlawful and unreasonable.
Two common carriers, Golden Relt Express Company, Inc., and The Central News Express, Inc., filed applications with the commission for extensions of their respective existing routes. The applications were consolidated for hearing and were granted to the extent hereinafter shown. Competitive carriers (appellees herein) appealed to the district court. The appeals were consolidated. The court ruled as above mentioned and the commission has appealed to this court.
The findings of fact of the trial court tell the story, and are as follow:
“Findings of Fact
“I. These two cases involve applications on the part of the Golden Belt Express Company, Inc., of Great Bend, Kansas, and The Central News Express, Inc., of Wichita, Kansas, for the extension of their existing routes. The cases were consolidated for hearing before the Kansas Corporation Commission and were consolidated for hearing and so presented before this court.
“2. The Golden Belt Express filed application and was granted permission to extend its service from Bushton to Lorraine to Holyrood to Ellsworth; also, over U. S. 40 from Ellsworth to Black Wolf, Wilson, Dorrance, Bunker Hill, Russell, Gorham, Walker, Victoria, Toulon and Hays, then via U. S. 40 to Russell, thence via U. S. 281 to Hoisington; also from Ness City via U. S. 288 to Ransom and via K 4 to Brownell and McCracken; also from Jetmore via U. S. 283 to Dodge City, thence via U. S. 50S and K 45 to Spearville, Offerle and Kinsley. The authority granted was to transport newspapers, periodicals, magazines and light express consisting of parcels not more than 3 feet in height, width or breadth or six feet in length and not to exceed 200 pounds in weight.
“3. The Central News Express filed application to extend service from Wichita via K 96 to Maize, Colwich, Andale, Mount Hope, Haven, Hutchinson, Nickerson, Sterling and Lyons; also from Wichita via U. S. 54 to Goddard, Garden Plain, Kingman, Calista, Cunningham, Cairo, Pratt, thence via K 61 to Preston, Turón, Langdon, Arlington, Partridge and Hutchinson, thence on U. S. 50-S to Burrton, U. S. 50S and K 89 to Halstead and U. S. 50S to Newton. This application was granted except as to service between Wichita and Mount Hope and between Wichita and Kingman. Authority was limited to light express consisting of packages and shipments not exceeding 3 feet in height, width or breadth or 5 feet in length and not over 200 pounds in weight.
“4. Felton Truck Lines operate at least one and sometimes two daily overnight schedules out of Wichita, serving directly all points west of Safina on U. S. 40 to Hays and beyond except Russell, and thus parallels the route sought by Golden Belt Express and serves the same communities from Ells-worth to Hays except Russell. This fine also interlines, with H & K Truck Lines at Russell, freight bound from Great Bend to Hays and other points served by Felton.
“5. Under its general commodity authority, Felton Truck Lines transports packages and shipments of less than 200 pounds, and such business is vital to the company’s successful operation and continued existence.
“6. No requests had ever been received by Mr. Felton, the owner and operator of Felton Truck Lines, from any witness who appeared at the hearing, for any additional schedules from Wichita to any of the above points, nor had Felton ever received any request for additional schedules from Great Bend to Russell, but he is financially able to and would add additional equipment and provide additional schedules were there sufficient public demand to warrant the same,
“7. Peter Rabbit Motor Freight, owned and operated by D. G. Eurton, operates a freight fine transporting general commodities out of Wichita, serving, among other communities, Halstead, Burrton, Hutchinson, Nickerson, Sterling, Lyons, Holyrood, Lorraine and Ellsworth. This fine thus serves the same communities to the north and west of Wichita, except Haven and Bush-ton, as would be served by the Central News Express, and approximately parallels the proposed fine of Central from Hutchinson to Ellsworth. Three daytime schedules per day, each way, are operated by Peter Rabbit from Wichita to Hutchinson and two from Hutchinson on north to Ellsworth. Store-door pick up and delivery service is provided.
“8. Thirty-nine percent of the shipments handled by Peter Rabbit are 200 pounds or less in weight, the loss of any part of which would have a definite adverse effect upon its business.
“9.. Peter Rabbit Freight has, in the past, transported news print for the Wichita Beacon, and received no complaint. The only other customer of this truck line who appeared at the hearing .was Western Supply, from whom no complaint as to service had ever been received; that Mr. Eurton is financially able and is willing to provide additional equipment and schedules if the public demand warrants it.
“10. The Santa Fe Trail Transportation Company operates a truck line out of Wichita via Burrton and Halstead to Hutchinson, thence through Nicker-son, Sterling and Lyons to Great Bend, and serves said communities. This line serves the same cities out of Wichita, except Haven, as would the Central News Express and parallels Central’s proposed extension from Hutchinson to Lyons. Two schedules per day, five or six days per week, are operated from Wichita to Great Bend which handle traffic for Hutchinson, Nickerson, Sterling and interlines freight to Russell. Two additional schedules are operated from Hutchinson to Great Bend that can handle overflow traffic.
“11. Santa Fe Trail Transportation also operates three schedules per day, five days a week, from Wichita to Dodge City, two by way of Pratt and one by Hutchinson, the former serving Cunningham, Cairo and Calista, the same being points sought to be served by Central News, and both schedules serving Kinsley and intermediate points to and including Dodge City, the latter being on the proposed extended route of Golden Belt. An additional five day per week schedule is operated between Wichita and Pratt directly.
“12. In addition to the above schedules, Santa Fe operates a schedule between Wichita and Garden City that often handles freight for Pratt and Dodge City, one that operates five days a week from Salina to Dodge City that can serve intermediate points between Dodge and Kinsley, and a morning schedule from Dodge City to Kinsley and return.
“IS. Of the freight handled by Santa Fe Trail Transportation Company, 66 percent consists of shipments 200 pounds or less, which provide a vital portion of Santa Fe’s revenues and the loss of which would jeopardize its service.
“14. The Missouri Pacific Freight Transport Company operates daily schedules seven days a week from Wichita to Hoisington, generally paralleling Central’s proposed line from Wichita to Hutchinson and serving Haven and Hutchinson as would Central. Missouri Pacific also has rail service between these points. A truck line from Hoisington west to Horace and rail line from Geneseo to Horace serves the same cities of McCracken, Brownell and Ransom as Golden Belt seeks to serve.
“15. 70.9 percent of the freight shipments handled by Missouri Pacific Freight Transport Company are 200 pounds or less.
“16. The Transcontinental Bus System, Inc., operates two schedules each way, 7 days a week, between Wichita and Hays via Great Bend, and one per day between Wichita and Great Bend. One of these serves Haven while two serve Halstead and Burrton. All of them serve Hutchinson, Nickerson, Sterling and Lyons. Another daily schedule is operated between Wichita and Dodge City, serving Halstead, Burrton and Hutchinson.
“17. Transcontinental also operates 7 schedules per day every day of the week between Wichita and Pratt, which serve Cunningham and Cairo as well.
“18. On all of its scheduled buses travelling the above routes, as above set out, Transcontinental transports express of not to exceed 200 pounds per package, and generally 24 x 24 x 45 in dimensions. The revenue obtained from this source is vitally important to this company’s bus operations and loss of the same would seriously affect its operations.
“19. No complaint for additional express service has been received by Transcontinental Bus System. It actively solicits express business and has room on its buses to adequately handle additional express.
“20. A total of 10 schedules per day are operated between Wichita and Hutchinson by the four truck and bus lines now transporting parcels and shipments of 200 pounds and less. Two of these schedules serve the intermediate city of Haven, and eight of them serve the intermediate cities of Halstead and Burrton. Departure times from Wichita are spaced from 9:15 A. M. to 6:30 P. M., and arrivals from 11:35 A. M. to 11:25 P. M.
“21. A total of 7 daily schedules are operated between Hutchinson and Lyons by the three lines that now are authorized to, and do, transport parcels and shipments of 200 pounds and less. These schedules all serve the intermediate cities of Nickerson and Sterling. Departure and arrival times from and at Hutchinson in both directions vary from 9:30 A. M. to 9:37 P. M.
“22. A total of 10 schedules are operated between Wichita and Pratt by the two companies who now operate on that route and who carry parcels and shipments of 200 pounds and less. Intermediate points between Kingman and Pratt are served thereby. Arrival and departure times at Wichita are spaced between 1:15 A. M. to 11:08 P. M.
“23. A total of 5 schedules per day are operated by Santa Fe Trailways alone between Kinsley and Dodge City, serving those cities and intermediate points.
“24. That no complaints relating to existing service or demands for additional schedules have been presented to the existing carriers by any of the firms whose officers or employees testified on behalf of the applicants.
“25. The existing facilities for the transportation of parcels or shipments of 200 pounds or less, particularly those of Transcontinental Bus and Peter Rabbit Freight, over the route sought by and granted to Central News Express are not being utilized by shippers to their full capacity, with many of the shippers, who testified, being unaware of all their schedules or times thereof or being indifferent thereto.
“26. There is no substantial, competent or material evidence of any need, convenience or necessity for additional transportation facilities over the routes sought by, and granted to, the Central News Express.
“27. That the service furnished by the existing transportation facilities over the routes and to the communities sought by, and described in the application of, the Central News Express, is reasonably adequate and sufficient.
“28. There is some evidence of a lack of convenient, sufficient service furnished by existing transportation agencies over the extension of the existing routes sought by Golden Belt Express, due chiefly, to the time of present schedules rather than lack of expedition in transport.
“29. That the existing common carriers now serving the areas and communities covered in the applications of both Golden Belt Express and Central News Express, would suffer from the diversion of traffic by applicants, and both their business and their service to the public would be adversely affected thereby.
“30. That the existing carriers operating over the routes sought both by the Central News Express and by the Golden Belt Express, were never given any opportunity to provide further or additional, convenient, efficient and sufficient service within a reasonable time over any of the routes or to any of the communities for which certificates were sought by the said applicants.”
As conclusions of law the court held:
“Conclusions of Law
“1. That the order entered by the Kansas Corporation Commission on July 22, 1955, extending the certificate of Golden Belt Express, Inc., is unreasonable and unlawful for the reason that existing public carriers operating over the routes sought by, and granted to, the applicant were not given a reasonable time to provide convenient, sufficient service, or further or additional service over said routes, in compliance with the provisions of G. S. 1949, 66-1,129.
“2. That the order of said Commission referred to in Conclusion 1 above should be set aside and vacated, and that judgment be entered in Case No.
8759 vacating and setting aside the order entered by the Commission on July 22, 1955, extending the certificate of Golden Belt Express, Inc.
“3. That the order of the Kansas Corporation Commission entered on July 22, 1955, extending the certificate of Central News Express, Inc., is unreasonable and unlawful in that it is not supported by substantial, competent evidence, and for the further and additional reason that even though the order were based on substantial, competent evidence the Commission did not comply with the provisions of G. S. 1949, 66-1,129 by giving existing public carriers reasonable time to provide any further service required to make the present service adequate.
“4. That the order of said Commission referred to in Conclusion 3 above should be set aside and vacated and that judgment be entered in Case No. 8760 vacating and setting aside the order of the Commission entered on July 22, 1955, extending the certificate of Central News Express, Inc.”
Judgment was entered in harmony with the conclusions of law. The commission’s specifications of error are:
“Specifications of Ebbok
“1. The District Court erroneously found that the existing carriers operating over the routes sought both by Central News Express, Inc., and Golden Belt Express, Inc., were never given any opportunity to provide further or additional, convenient, efficient and sufficient service within a reasonable time over any of the routes, or to any of the communities for which certificates were sought by the said applicants.
“2. The District Court erroneously held that the orders entered by the State Corporation Commission on July 22, 1955, are unreasonable and unlawful for the reason that existing public carriers operating over the routes sought by, and granted to, the applicants were not given a reasonable time to provide convenient, sufficient service, or further or additional service over said routes, in compliance with G. S. 1949, 66-1,129.
“3. The District Court erroneously interpreted and misconstrued the provisions of G. S. 1949, 66-1,129 by appling those provisions to the case before it.”
The commission has not abstracted any of the evidence heard by it and reviewed by the trial court on appeal. We therefore proceed upon the theory that each and every finding of fact is supported by competent and substantial evidence. (In re Estate of Fitzroy, 172 Kan. 339, 240 P. 2d 163; Franklin v. Kansas City Public Service Co., 175 Kan. 626, 628, 265 P. 2d 1031; Osborne v. Fakes, 178 Kan. 373, 376, 286 P. 2d 156.) In fact, during oral argument counsel for the commission conceded the detailed findings are so supported and made no objection concerning them.
This, therefore, disposes of the first specification of error.
The principal question in these appeals concerns the correctness of the trial court’s application of G. S. 1949, 66-1,129, to the facts found — that is, whether its provisions are a limitation upon the granting of a certificate of convenience and necessity under G. S. 1949, 66-1,114.
Although lengthy, we consider it necessary to set out those two sections in full.
G. S. 1949, 66-1,114, reads:
"It shall be unlawful for any public motor carrier to operate as a carrier of intrastate commerce within this state without first having obtained from the corporation commission a certificate of convenience and necessity. The corporation commission, upon the filing of application for such certificate, shall fix a time and place for hearing thereon, which shall not be less than twenty nór more than thirty days after such filing. The corporation commission shall cause a copy of such application and notice of hearing thereon to be served at least ten days before the hearing upon an officer or owner of every common carrier that is operating or has applied for a certificate to operate in the territory proposed to be served by the applicant, and on the city clerk of every city into or through which said motor carrier may desire to operate; and any such common carrier or city is hereby declared to be an interested party to said proceedings and may offer testimony for or against the granting of such certificate, and any other interested person may offer testimony at such hearing. If the commission finds from the evidence that the proposed service or any part thereof will promote the public convenience and necessity, the commission shall issue the certificate; otherwise such certificate shall be denied. Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from, the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.” (Our italics.)
G. S. 1949, 66-1,129, reads:
“The commission shall promulgate and publish in the official state paper, and mail to each holder of a certificate or license hereunder, such regulations as it may deem necessary to properly carry out the provisions and purposes of this act. The commission may at any time, for good cause, suspend, and, upon at least five days’ notice to the grantee of any certificate and an opportunity to be heard, revoke or amend any certificate. Upon the commission finding that any public carrier ¿loes not give convenient, efficient and sufficient service as ordered, such public carrier shall be given a reasonable time to provide such service before any existing certificate is revoked or a new certificate granted. Any rules promulgated by the commission shall include: (a) Every vehicle unit shall be maintained in a safe and sanitary condition at all times, (b) Every operator of a motor vehicle used as a public carrier shall be at least twenty-one years of age; and every operator of other carriers to which this act applies shall be at least sixteen years of age; and all such operators shall be of good moral character and fully competent to operate the motor vehicle under his charge, (c) Hours of service for operators of all motor carriers to which this act applies shall be fixed by the commission. (d) Accidents arising from or in connection with the operation of carriers shall be reported to the commission in such detail and in such manner as the commission may require: Provided, That the failure to report any such accident within five days after the happening thereof shall be deemed willful refusal to obey and comply with a rule of the commission. (e) The commission shall require and every carrier shall have attached to each unit or vehicle such distinctive marking as shall be adopted by the commission.” (Our italics.)
The commission contends that the two statutes, which are sections 7 and 22, respectively, of chapter 236, Laws' of 1931, serve separate functions in the field of public-carrier law pertaining to the issuance of certificates of convenience and necessity; that they are separate and independent of each other, and that neither controls the other in its application. In other words, it is argued that the basis of the trial court’s conclusion of law number 1 and the second portion of conclusion of law number 3, in which it was held the orders of the commission were unlawful and unreasonable because it had not given existing public carriers (appellees herein) a reasonable time in which to provide further or additional service over their routes under the italicized portion of 1,129, above, before granting the extensions to Golden Belt and Central News, is erroneous.
Because of the ultimate disposition being made of these appeals, discussion of the question is perhaps, in one sense, academic. Nevertheless, as the matter is of public and governmental concern, we think it should be answered.
The question really amounts to this: Where, under 1,114, a public carrier applies to the commission for a certificate of convenience and necessity, or, as here, for an extension of its existing certificate, does the italicized portion of 1,129, above quoted, require that the commission give to an existing public carrier a reasonable time in which to provide the service thus sought before it may grant the application? In other words, is the mentioned portion of 1,129 a limitation upon the authority of the commission to grant a certificate of convenience and necessity under 1,114?
In our opinion the question must be answered in the negative.
In Pickwick Greyhound Lines v. Public Service Com., 132 Kan. 464, 295 Pac. 647, the court considered a similar question involving sections 4 and 8 of chapter 206 of the Laws of 1925. Section 4 of that act is substantially identical to 1,114, here involved, except that it does not contain the italicized portion of 1,114, above. Section 8 of the act there under consideration is substantially identical to 1,129, now before us.
It was held that the two sections must be construed so that each will have its sphere of operation; that section 4 authorizes the commission to grant certificates of convenience and necessity, and that section 8 concerns the character of service that is being rendered by a public carrier after it has been granted a certificate; that the finding required by section 4 is one of public convenience and necessity, while that required by section 8 is that a public carrier to whom a certificate has been granted does not give service in accordance with the order of the commission, and that the sections are not in conflict with each other, and neither controls the other.
The decision in that case was rendered several months prior to the effective date of 1,114 and 1,129, but the addition of the italicized portion in 1,114 is immaterial on the basic question involved.
The holding in the Pickwick case was approved in Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 665, 11 P. 2d 985, which also dealt with the prior law.
The parties to the appeals before us refer to what was said, commencing on page 496 of the opinion in the case of Rock Island Motor Transit Co. v. State Corporation Comm., 169 Kan. 498, 219 P. 2d 405, with respect to the application of 1,129, and from the first and third conclusions of law it is apparent the trial court interpreted the decision as meaning that 1,129 operates as a limita tion on the authority of the commission to grant a certificate under 1,114. We frankly concede that certain language contained in the opinion in that case is subject to the interpretation apparently given to it by the trial court. Reference to the facts and question there under consideration, however, discloses that the point was not decisive in the case, and our reference to 1,129 could very well, and should have been, omitted. Anything said in the Rock Island opinion tending to indicate that 1,129 is construed as being a limitation on the power of the commission authorized by 1,114, is hereby disapproved.
The sum and substance, then, of what has been said is this:
1,114 provides that it shall be unlawful for any public motor carrier to operate as a carrier of intrastate commerce without first having obtained from the commission a certificate of convenience and necessity. By its provisions the commission, after the filing of an application, must fix a time and place for a public hearing thereon not less than twenty nor more than thirty days after such filing, and must give notice to all interested parties mentioned in the statute so that they may be given the opportunity to appear in support or protest of the application. If, from the evidence submitted, it is found that public convenience and necessity will be promoted, the commission shall grant the application, but in so doing it must take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case the evidence discloses that the service furnished by existing transportation facilities is reasonably adequate the commission shall not grant such certificate. The finding required by this section is one of public convenience and necessity.
1,129, on the other hand, concerns the regulatory power and authority of the commission over a public carrier to whom a certificate has already been granted, and, so far as here pertinent, merely provides that upon a finding that such public carrier is not giving convenient, efficient and sufficient service, as ordered, it shall be given a reasonable time to provide such service before any existing certificate is revoked or a new certificate granted. The finding required by this section is that the public carrier to whom a certificate has been granted is not giving the service as ordered by its certificate.
It is true that under the provisions of 1,114 the commission must take into consideration the service furnished by existing transporta tion facilities, and that under 1,129 an existing carrier, if not providing service required by its certificate, is to be given a reasonable time in which to improve its service before its certificate may be revoked or a new one granted, and that to such extent it may be said the two sections “overlap,” nevertheless, each deals with a separate field and is independent of the other.
Technically speaking, therefore, insofar as Golden Belt is concerned, the trial court was in error in holding in conclusion of law number 1 that the order of the commission was unlawful and unreasonable because existing public carriers (appellees herein) were not given a reasonable time to provide convenient, sufficient service, or further or additional service over their routes, in compliance with 1,129. For the same reason the second portion of conclusion of law number 3, relating to Central News, also was erroneous.
It does not follow, however, that the judgment itself is erroneous. The ultimate question is whether the judgment is correct, and it has been held many times that if a judgment is correct it will not be set aside merely because of erroneous reasoning in arriving at it. (Saylor v. Crooker, 97 Kan. 624 [syl. 4], 156 Pac. 737, Ann. Cas. 1918D 473; Foster v. City of Augusta, 174 Kan. 324 [syl. 4], 256 P. 2d 121; Johnson v. Boeing Airplane Co., 175 Kan. 275, 283, 262 P. 2d 808; Asendorf v. Common School District No. 102, 175 Kan. 601, 609, 610, 266 P. 2d 309.)
With this rule in mind, we look to the judgment rendered which vacated and set aside, as being unlawful and unreasonable, the orders of the commission extending the certificates of convenience and necessity to Golden Belt and Central News.
With respect to Central News, the court, in findings 26 and 27, found that there was no substantial, competent or material evidence of any need, convenience or necessity for additional transportation facilities over the routes sought by and granted to Central News, and that the service furnished by existing transportation facilities over the routes and to the communities sought by Central News was reasonably adequate and sufficient. These findings are binding upon the commission, and support the judgment vacating and setting aside the order granting the extension to Central News.
With respect to Golden Belt, the court, in findings which are binding upon the commission, found that no complaints relating to existing service or demands for additional schedules had ever been made to existing carriers by any of the firms whose officers or em ployees testified on behalf of Golden Belt; that while there was some evidence of a lack of convenient, sufficient service furnished by existing carriers over the extension of the existing routes sought by Golden Belt, it was due, chiefly, to the time of present schedules rather than lack of expedition in transport, and that existing carriers serving the areas and communities covered in Golden Belt’s application would suffer from the diversion of traffic by Golden Belt, and that their business and their service to the public would be adversely affected thereby. From these findings (24, 28 and 29), and others, it is clear the trial court was of the opinion the evidence established that the service being furnished by existing carriers was reasonably adequate, as contemplated by 1,114, in which event it thus was justified in setting aside the order of the commission granting the extension to Golden Belt. As to Golden Belt the findings support the judgment rendered.
From what has been said it follows that, even though in two of its conclusions of law the trial court placed an erroneous interpretation on 1,129, the judgment rendered was correct, and it is affirmed. | [
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The opinion of the court was delivered by
Hall, J.:
This is an original proceeding for a Writ of Habeas Corpus.
On January 22, 1957, the judge of the Probate Court of Leavenworth County, Kansas, entered an order granting a Writ of Habeas Corpus. The respondent made due return to this writ. On February 13, 1957, an order was entered in the probate court dissolving the writ and remanding petitioner to the custody of respondent. On March 5, 1957, the petitioner attempted to file an appeal in this court directly from the order of the Leavenworth County Probate Court. This court on March 27, 1957, ordered the matter be treated as an original proceeding.
The petitioner in his application claims he is being denied his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 10 of the state constitution, in the following particulars:
On the 11th day of December, 1953, in the district court of Montgomery County, Kansas, the petitioner entered pleas of guilty to a charge of burglary in the 2nd degree under G. S. 1949, 21-520 and to the charge of grand larceny in connection with burglary under G. S. 1949, 21-524.
The journal entry recites that the county attorney served written notice of intention to ask for increased sentence under the Habitual Criminal Act if a conviction were obtained upon the petitioner.
After the pleas of guilty were made and accepted by the court, sentence was deferred until the 18th day of December, 1953. On that day and before the court pronounced sentence the county attorney stated his request to invoke the Habitual Criminal Act and requested permission to offer evidence in support thereof. No objection was made and evidence of the prior conviction was introduced.
The court sentenced the petitioner to serve a period of not less than five (5) nor more than twenty (20) years on the crime of burglary in the 2nd degree. The journal entry recited:
“It Is, Therefore, by the Court Considered, Ordered, Adjudged and Decreed, That the defendant, Tony Richardson, be and he is hereby sentenced to serve a period of not less than five (5) nor more than twenty (20) years in the Kansas State Penitentiary at Lansing, Kansas, upon conviction of the crime of burglary in the Second Degree under sections 12-520 [21-520] and 21-523 G. S. Kansas, 1949, and said sentence being increased under the provisions of section 21-107a G. S. Kansas, 1949; . . ." (Emphasis ours.)
The court also sentenced the petitioner to not less than ten (10) years on the crime of grand larceny in connection with the burglary. The journal entry also recited that this sentence was increased under the provisions of G. S. 1949, 21-107a.
The petitioner was remanded to the custody of the sheriff to be confined in the Kansas State Penitentiary.
On the 29th day of December, 1953, while the petitioner was still in the county jail and in the custody of the sheriff it was discovered that an error had been made in pronouncing sentence upon the petitioner. As noted in the journal entry above the sentence of the court under the Habitual Criminal Act was correct for the crime of larceny but not so for the crime of burglary. The court had sentenced the petitioner on the crime of burglary for a period not less than five (5) nor more than twenty (20) years. Under the Habitual Criminal Act sentence should have been not less than ten (10) nor more than twenty (20) years.
The journal entry thereafter recites that on the 29th day of December, 1953, the court resentenced the petitioner on the charge of burglary by changing the sentence to not less than ten (10) years and not more than twenty (20) years as provided by the provisions of G. S. 1949, 21-107a.
The petitioner was in court and made no objection to the order of the court.
In his brief petitioner contends that he was denied his constitutional rights by the court in this change of sentence for the crime of burglary. He relies primarily on the case of Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586, where the court held:
“When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this be done at the same term of court.” (Syl. 2.)
He also cites: Hollon v. Hopkins, 21 Kan. 459 [2nd Ed.]; The State v. Hughes, 35 Kan. 626, 12 Pac. 28, 57 A. R. 195; In re Strickler, Petitioner, 51 Kan. 700, 33 Pac. 620; Jackson v. The State, 52 Kan. 249, 34 Pac. 744; In re Beck, 63 Kan. 57, 64 Pac. 971; In re Rex, 70 Kan. 221, 78 Pac. 404; The State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 L. R. A. n. s. 90, Ann. Cas. 1913C 278; The State v. McBee, 10 Kan. App. 450, 61 Pac. 1093.
The authorities of the petitioner have been carefully examined. They are not applicable to the facts of his case.
As he contends, the rule is well settled in this state that when a valid judgment and sentence has been rendered in a criminal case the court has no jurisdiction after tire sentence has been executed, in whole or in part, to set it aside and impose a new sentence, even though the sentence be reduced and the court acts within the term. (Parks v. Amrine, supra; State v. Carte, 157 Kan. 139, 138 P. 2d 429; State v. Nichols, 167 Kan. 565, 207 P. 2d 469; State v. Looney, 181 Kan. 402, 312 P. 2d 212.)
In this respect Kansas follows the weight of authority among the states. (15 Am. Jur., Criminal Law, §§ 473, 474, 475, 476; 24 C. J. S. Criminal Law §§ 1588, 1589; 168 A. L. R. 706.)
However, this rule applies only to valid judgments. It is also the rule of law that a sentence if void may be changed to a valid sentence. (15 Am. Jur., Criminal Law, § 477; 168 A. L. R. 706; State v. O’Keith, 136 Kan. 283, 15 P. 2d 443; Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527; State v. Looney, supra.)
In some jurisdictions a distinction is made between the correction of a void sentence and the correction of a sentence that is merely erroneous or irregular. In these jurisdictions an erroneous or irregular sentence is not considered void and comes within the appli cation of the general rule that a valid sentence may not be changed. (Simmons v. United States, 89 F. 2d 591 [writ of certiorari denied in (1937) 302 U. S. 700, 82 L. Ed. 540, 58 S. Ct. 19]; People v. Conley, 27 Cal. App. 362, 150 Pac. 412; Hickman v. Fenton, 120 Neb. 66, 231 N. W. 510, 70 A. L. R. 819; Matter of Lyons v. Robinson, 293 N. Y. 191, 56 N. E. 2d 546; State v. Ryan, 146 Wash. 114, 261 Pac. 775.)
Kansas has never made this distinction and has always considered an erroneous or irregular sentence the same as a void sentence and thus within the power of the court to substitute a new and valid sentence. (The State v. Tyree, 70 Kan. 203, 78 Pac. 525; The State v. Demming, 79 Kan. 526, 100 Pac. 285; State v. Woodbury, 132 Kan. 22, 294 Pac. 928; Davis v. Hudspeth, 161 Kan. 354, 167 P. 2d 293; Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698; Patterson v. Hudspeth, 170 Kan. 30, 223 P. 2d 974.)
Under our cases this court may remand a prisoner for further proceedings in the district court to correct a void or erroneous sentence and such authority is not limited to appeals. It can also be made properly in habeas corpus proceedings. (McCleary v. Hudspeth, 124 F. 2d 445; Levine v. Hudspeth, 127 F. 2d 982.)
The correction of an erroneous and irregular sentence should also be distinguished from the correction of merely formal or clerical errors, omissions or mistakes in entries concerning matters of procedure which are generally corrected in all jurisdictions by nunc pro tunc orders. (15 Am. Jur., Criminal Law, § 478; In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414.)
The facts of the petitioner’s case are very similar to those in Edwards v. Hudspeth, supra, where the court ordered the correction of an erroneous and irregular sentence. In the Edwards case the petitioner pleaded guilty to grand larceny of an automobile and was sentenced from one (1) to five (5) years. After he was sent to the penitentiary it was discovered that the sentence in the journal entry was erroneous and that since the petitioner had stolen an automobile he should have been sentenced from not less than five (5) years nor more than fifteen (15) years. The court said:
“. . . The sentence pronounced, was invalid. Petitioner should have been sentenced to be confined for a term of not less than five nor more than fifteen years, as provided by G. S. 1935, 21-534. Under such circumstances the correct procedure is for the accused to be brought before the trial court for a proper sentence. We have made orders to that effect in the past where it appeared that the sentence imposed was not the correct one. (See State v. Woodbury, 132 Kan. 22, 294 Pac. 928; also State v. Perkins, 156 Kan. 323, 133 P. 2d 160.)” (p. 39.)
The sentence here was erroneous and invalid. The district court of Montgomery County acted within its authority in changing it to comply with the provisions of the Habitual Criminal Act, G. S. 1949, 21-107a. In so doing the court did not deny the petitioner any of his rights under the United States Constitution or the Consitution and Laws of Kansas.
The writ is denied. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the plaintiff from an order quashing the service of summons had on a nonresident defendant in a malpractice action brought against two doctors, one a resident of Douglas County, where the action was filed, and the other a resident of Atchison County.
The question presented is whether the petition alleges joint liability on the part of the two defendants who treated plaintiff’s broken leg.
Ordinarily, a party who is sued in a common law action for damages is entitled to be sued in the county of his residence or where he may be summoned. (Spade v. VanSickle, 175 Kan. 557, 265 P. 2d 860.) However, where joint liability of multiple defendants is sufficiently alleged in a petition filed in a county where one of such defendants can be and is served with summons, the issuance and service of summons upon another or other defendants in another county is justified. If the nonresident defendant who has been served with summons in such an action files a motion to quash the service of summons upon him, the question is not whether the alleged joint liability can be established at the trial, but whether or not the petition sufficiently alleges joint liability of such defendants. (Jones v. Coate, 177 Kan. 109, 276 P. 2d 329.)
In the instant case, if the petition alleges joint liability of the two defendants, the summons issued and served upon the nonresident defendant in Atchison County is proper — otherwise it is not.
The petition is brief and a full disclosure of the pertinent allegations will serve to indicate the facts and give the precise nature of the pleading under attack. Omitting the caption, the prayer and the allegations which relate to damages, it reads:
“Comes now the plaintiff and for his cause of action against the defendants, plaintiff alleges and states:
“1. That he is a resident of Atchison County, Kansasj that the defendant Russell Frink is a resident of Lawrence, Douglas County, Kansas; that the defendant Charles Brady is a resident of Atchison, Atchison County, Kansas.
“2. That at all times hereinafter mentioned Russell Frink and Charles Brady were duly licensed to practice medicine and did practice and operate their offices at Lawrence, Kansas and Atchison, Kansas. That they held themselves out to the public to be experts, properly schooled in the reductions of fractures and dislocations and other diseases of the bones and muscles.
“3. Plaintiff further alleges that on the 8th day of May, 1935, while riding a horse near Atchison, Kansas, he was thrown from said horse and received a fracture involving the upper end of the tibia and subluxation at the knee joint. That subsequent to receiving said injuries he employed the defendants and each of them for the purpose of administering medical aid to him. That thereafter Charles Brady caused x-rays to be taken and proceeded to undertake the care and treatment of plaintiff’s injuries at the Atchison Hospital, Atchison, Kansas. That even though x-rays taken disclosed that plaintiff’s knee was dislocated the defendant Charles Brady neglected and failed to administer treatment to it.
“4. Plaintiff further alleges that on the 18th day of May, 1955, he was transferred from the Atchison Hospital, Atchison, Kansas, to the Lawrence Memorial Hospital, Lawrence, Kansas, under the care of Russell Frink who continued to counsel with and advise with the co-defendant Charles Brady in the care and treatment of the plaintiff.
“5. Plaintiff further alleges that the defendants and each of them neglected and failed to recognize that his knee joint was dislocated and failed to administer proper care to the knee joint until plaintiff’s knee became permanently injured and stiffened, and plaintiff has lost 50% of the use of his leg.
“6. Plaintiff further alleges that defendants and each of them were negligent in the care and treatment administered to the plaintiff in the following particulars, to-wit:
“(a) In failing to observe the true condition of the plaintiff’s leg even though x-rays were made and he saw or should have seen by the exercise of ordinary care, the condition of the plaintiff’s knee.
“(b) In failing to read the x-rays and study the injuries plaintiff received.
“(c) In failing to administer treatment to said injuries after they were employed by plaintiff and after they had agreed to administer treatment to said injuries.
“(d) In negligently and carelessly failing to observe and treat the dislocation of the knee.
“(e) In permitting the subluxation of the dislocation of the knee to remain untreated, thus causing the stiffening of the knee.
“7. The plaintiff alleges that the defendant Brady had x-rays taken and saw the x-rays and after they were taken transferred the same to the defendant Frink who viewed and saw said x-rays and was advised by experts that the x-rays disclosed that the plaintiff’s knee was dislocated.
“8. The plaintiff further alleges that the defendant Brady was negligent in not specifically calling the attention of his co-defendant Frink to the fact that plaintiff’s knee was dislocated, which he knew.
“9. Plaintiff further alleges that defendant Frink and defendant Brady were negligent and their joint negligence was the sole cause of his knee becoming stiffened and his losing the use of his leg.” (Emphasis added.)
As far as we are advised, the defendant Frink was properly served with summons in Douglas County and the action is still pending against him. There is no contention that the petition does not state a cause of action against the defendant Frink in Douglas County or that the action against him is not bona fide. (See Voelker v. Broadview Hotel Co., 148 Kan. 326, 81 P. 2d 36; Spade v. VanSickle, supra; and Volok v. McCarter Truck Line, 156 Kan. 128, 131 P. 2d 713.) The only question here is whether, under the above allegations, the defendant Brady is jointly liable.
In the construction of a petition for the purpose of determining its effect, allegations are to be liberally construed with a view to substantial justice between the parties. (G. S. 1949, 60-736.) We think it entirely clear that the motion to quash in the instant case challenges the sufficiency of the petition to give jurisdiction to the court over the person of the defendant Brady. Under our code the first ground provided for a demurrer to the petition is that the petition shows on its face . . that the court has no jurisdiction of the person of the defendant, . . (G. S. 1949, 60-705.) Therefore, the motion to quash, which in substance and effect challenges the sufficiency of the petition, on its face, to give the court jurisdiction of the person of the defendant, may properly be construed as a demurrer to the petition as provided in 60-705, supra. (Volok v. McCarter Truck Line, supra.) The general rule is that as against a demurrer the petition of the plaintiff is entitled not only to the benefit of the facts pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom. (See, Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; and Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152.)
An action for damages for malpractice is one in tort, even though there was a contract, or implied contract of employment. (Foster v. Kopp, 151 Kan. 650, 100 P. 2d 660.) The rules respecting the liability of physicians in malpractice cases have been frequently stated. Many of them are collected in James v. Grigsby, 114 Kan. 627, 220 Pac. 267, where the cases are accumulated. Without further discussion or elaboration on such rules, the reader is referred to pages 631 and 632 in the James case.
Liability in tort may flow from joint and concurrent acts of negligence on the part of two or more persons. But in order to establish liability on the part of all the tortfeasors it must appear that their various acts of negligence combined to produce a result and were together the proximate cause of injury. (Jones v. Kansas Public Service Co., 158 Kan. 367, 147 P. 2d 723; and Neiswender v. Shawnee County Comm'rs, 151 Kan. 574, 577, 101 P. 2d 226, and others there cited.) It has been stated that where an injury to an innocent person would not have occurred except for the concurrent negligence of others the subject of proximate cause need not be considered and those whose acts united in producing the injury will be held jointly and severally liable to the injured party. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924; and Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934.)
Although, in order to be concurrent, the negligence of two persons must be simultaneous, a primary act of negligence may be so continuous in its character that it conjoins with an act of negligence of another committed at a much later date.
In Acock v. Kansas City Power Light Co., 135 Kan. 389, 10 P. 2d 877, this court said:
“. . . Here both parties were negligent. While it is true that one succeeded the other in time, they are necessarily related and interwoven, and the death of Acock was the result of the concurrent negligence of both appellants.” (p. 398.)
(See, also, the authorities and cases cited therein.)
This court recognized in Emmerich v. Kansas City Public Service Co., 177 Kan. 443, 280 P. 2d 615, that a cause is considered to be concurrent if it was a cause which was operative at the moment of injury and acted contemporaneously with another cause to produce an injury and was an efficient cause in the sense that without it the injury would not have occurred.
For a statement of the rules and a discussion on remote and proximate, or intervening cause, in negligence cases, see Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; and Trapp v. Standard Oil Co., 176 Kan. 39, 269 P. 2d 469.
The position taken by the defendant Brady is that the petition accused him of an act of omission, which of necessity had to occur during the short period of time that the plaintiff was in his care at Atchison, that is from May 8, 1955, to May 13, 1955. During this period Dr. Frink had not entered the case. It is therefore contended that their respective treatment of the plaintiff did not concur but took place at disconnected places and times. The position taken is that the alleged acts or omissions of the defendants are neither related nor interwoven in point either of time or place.
The question therefore resolves into this: Are the acts of the defendants as disclosed by the petition so related that they may be considered to be the proximate cause of the plaintiff’s injuries or that they might be considered to be concurrent acts?
It is alleged and therefore must be taken as true that plaintiff’s leg is stiff because neither of the defendants administered treatment to the knee which was dislocated. Had Dr, Brady set the plaintiff’s dislocated knee it would not have been stiff. If Dr. Frink had set the plaintiff’s dislocated knee it would not have been stiff. Both of the defendants, who held themselves out to tire public to be experts, properly schooled in the reductions of fractures and dislocations and other diseases of the bones and muscles, owed the plaintiff a duty to set this dislocated knee which they omitted, thereby failing in their duty as experts in the treatment of dislocated bones.
If only Dr. Brady had treated the plaintiff and failed to set the dislocated knee, as he did in this case, it would have been stiff. Likewise, because Dr. Frink failed in his duty to set the dislocated knee after he took care of the plaintiff, the plaintiff’s leg is stiff.
We cannot say in construing this petition that the employment of Dr. Brady ceased on the 13th day of May, 1955. Construing the entire petition as a whole it states that the plaintiff was transferred from the Atchison Hospital, Atchison, Kansas, to the Lawrence Memorial Hospital, Lawrence, Kansas, under the care of Russell Frink who continued to counsel with and advise with the co-defendant, Charles Brady, in the care and treatment of the plaintiff. The omission of the two defendants was so related in point of time and interwoven that the resultant injury to the plaintiff was such that the omission on the part of each continued up until the time or date of the injury. In our opinion, the omission of each of the defendants concurred in producing the resultant injury to the plaintiff.
Although we have been cited to no case precisely in point, a case analogous on the factual situation is Noel v. Menninger Foundation, supra, where it was held that the driver of an automobile and the Foundation, which was taking care of an invalid patient, could be joined and sued in the same action, and that their negligence, one of failing to take care of the patient and the other in running over the patient, were so-related and interwoven that they might cooperate and become concurrent causes.
Defendant Brady relies upon Rose v. Sprague, 248 Ky. 635, 59 S.W. 2d 554. This is a leading malpractice case in this country where the plaintiff alleged that he engaged the defendants in the counties of their respective residences; where each treated his ailment by virtue of separate and independent engagements; and that their separate treatment afforded him no relief from a wound in the plaintiff’s throat. The plaintiff charged each of the defendants with malpractice and endeavored to state a joint cause of action against them in order to give jurisdiction to the Whitley circuit court. The plaintiff alleged that the defendants’ separate and successive treatment was not successful, that he was not cured of his ailment, and his injury was caused directly by the concurrent negligence of the several physicians. The Kentucky court held that the plaintiff had no joint cause of action against these physicians, saying:
“The import of these elementary principles is that physicians when engaged and acting independently of each other in diagnosing and treating a patient, during different and distinct periods of time, each is only liable to his patient for his own wrong or negligence, but not for the negligence of the other, even though neither of them effects a cure of the patient’s ailment.
“It may be considered in such case that the failure of both physicians to afford relief is concurrent, but such concurrent failure to effect a cure cannot and does not create a joint cause of action against them, simply because neither of them cured the patient, or achieved the result he desired or expected; when he separately engaged and received independent treatment at their hands.” (p. 642.)
The distinguishing characteristic of the Kentucky case is the fact that the physicians there were separately engaged by the plaintiff and he received independent treatment at their hands. The court there emphasized that the plaintiff in his petition unequivocally alleged that his engagement of each of the physicians was independent of the engagement of the other, and that the diagnosis and treatment by one was not in connection with the others. (But see, Baird v. National Health Foundation, 235 Mo. App. 594, 144 S. W. 2d 850). In the instant case the fair import of the petition is that the plaintiff was referred by Dr. Brady to Dr. Frink, another specialist in the same field, and was transferred to Lawrence for that purpose, both continuing as the physicians engaged by the plaintiff to treat his injuries.
We therefore hold plaintiff’s petition alleges that both defendants were negligent, and that the negligent omission of the defendant Brady was so continuous in its character that it conjoined with the negligent omission of the defendant Frink committed at a later date, and was thus necessarily related and interwoven. The injury of the plaintiff was, therefore, the result of the concurrent negligence of both defendants and they were properly joined in the petition which alleged them tó be jointly liable. (See, Restatement of Law, Torts, § 439, p. 1184, indexed under Legal Cause — Concurrent Cause, and Comment: (a) and (b) thereunder.) Annotations which bear on the point presented may be found in 9 A. L. R. 939; 35 A. L. R. 409; 91 A. L. R. 759; and note in 46 A. L. R. 1454.
Plaintiff specifies as error the trial court’s ruling refusing to direct the defendant Frink to permit the Lawrence Memorial Hospital to release to plaintiff its records concerning his injuries. This was presented in the trial court as a “Motion for Inspection.” It was taken under advisement by the trial court pending plaintiff’s future action in this case- in view of the order quashing service of summons on the defendant Brady. However, upon being pressed by the plaintiff for a ruling, the trial court overruled the motion.
Under the circumstances we are of the opinion that this question is premature. It was discretionary with the trial court to overrule the motion or hold it in abeyance until the issue as to the parties had been finally determined. The plaintiff is free to pursue the statutory procedure for inspection and copy of books and papers (G. S. 1949, 60-2850) or subpoena duces tecum (G. S. 1949, 60-2807) at the proper time.
The trial court erred in quashing the service of summons upon the defendant Brady and the judgment is reversed.
Pabker, C.- J., and Price, J., dissent. | [
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The opinion of the court was delivered by
Price J.:
This is an appeal from an order sustaining a demurrer to a second amended petition in an action growing out of a relationship in the nature of landlord and tenant.
Because of the disposition being made of the case, it is considered advisable to set forth a brief statement of the pleadings and the rulings thereon prior to the ruling from which the appeal was taken.
The original petition was filed on December 15, 1955. ■ Defendants filed a motion to strike nine paragraphs and portions of three paragraphs of it. This motion was sustained in part and overruled in part. On March 1, 1956, plaintiffs filed an amended petition. Defendants filed a motion to make that pleading definite and certain in eleven particulars. This motion was sustained in its entirety. Plaintiffs then filed their second amended petition, whereupon defendants filed a motion to strike portions thereof. This motion was overruled, whereupon defendants filed a demurrer on the grounds the second amended petition shows upon its face that several causes of action are improperly joined and that such plead ing does not state facts sufficient to constitute a cause of action. This demurrer was sustained, and plaintiffs have appealed.
Very briefly stated, the story, as alleged in the second amended petition (hereafter referred to as the petition), is substantially as follows:
Defendants are the owners of 560 acres of land in Labette County. In February, 1954, plaintiffs and defendants entered into a written contract whereby plaintiffs were to move onto the farm and furnish all farming equipment and farm the land under the supervision of defendants. Defendants were to furnish certain livestock which were to be cared for by plaintiffs. Plaintiffs were to receive a specified share of crops and of the livestock and chickens produced, less certain expenses. Plaintiffs entered into possession of the farm and raised crops, cattle and hogs. In August, 1955, plaintiffs notified defendants that the contract would be terminated on March 1, 1956. In November, 1955, defendants countered by serving a written notice to the effect they deemed themselves insecure under the contract, that it was to be terminated in thirty days, and that plaintiffs were to vacate the premises within that period.
A few days later the parties orally agreed that if plaintiffs would use their own equipment in hauling the cattle to Angola and have them weighed, and deliver possession of the same to defendants, defendants would make a full and complete settlement. Plaintiffs complied with this agreement, but defendants refused to make the settlement agreed upon. Plaintiffs, at the express request and direction of defendants, sold twenty-three hogs at the Coffeyville stockyards, receiving a check therefor from the purchaser, but defendants caused payment of the check to be stopped for the purpose of humiliating plaintiffs and causing the purchaser of the hogs to believe that plaintiffs had wrongfully and unlawfully sold them.
The petition seeks recovery of $7,289.89 for plaintiffs’ share of livestock and crops, and for various labor performed on the farm, and punitive damages in the amount of $5,000 arising out of the action of defendants in causing the purchaser of the hogs to stop payment on the check.
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.
This court receives numerous appeals by defendants from orders overruling demurrers to petitions. Some of them are meritorious, but many are patently without merit and appear to be nothing more than delaying tactics or efforts “to try lawsuits” prior to the joining of issues. Here, of course, we have the reverse situation, for defendants’ demurrer to the petition was sustained. Having filed three petitions, the presumption is that plaintiffs pleaded all that is possible for them to plead, thus they were compelled to appeal in order to maintain their action.
What we have to say is not meant in a spirit of criticism of counsel for defendants or of the trial court, but, 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. Defendants contend they are unable to understand clearly just what relief is sought and argue that if a trial is had upon the petition, with all of its ramifications, the inherent confusion is almost certain to precipitate trial errors which would preclude the rendition of a judgment in the trial court which this court could ultimately affirm. Perhaps the petition could have been more artfully and clearly drawn. The fact remains, however, that in our opinion defendants’ contention to the effect they are in doubt as to just what they are called upon to defend against is without merit and cannot be sustained.
We express no opinion at this stage of the case on the various legal propositions contained in the briefs of the parties, and merely hold that the demurrer to the petition was erroneously sustained.
The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a workmen’s compensation case arising from the death of Martin W. Kafka, a cattle truck driver, whose death occurred' from coronary thrombosis or coronary occlusion on December 5, 1955, within a few minutes from the time he had loaded his truck with cattle, driven it some three hundred feet away from the loading chutes, left the truck, and then walked back, approximately one hundred fifty feet, toward such chute.
The proceeding was instituted by Flox'ence Kafka, hereinafter referred to as the claimant or appellant, as widow and guardian of the decedent’s two minor children, against D. I. Edwards, d/b/a Edwards Trucking Service, the employer, and Firemen’s Fund Indemnity Company, the insurance carrier.
In submitting the cause to the Commissioner, the parties stipulated the only questions in issue were (1) whether decedent met with personal injury by accident on the date in question, (2) whether his accidental injury arose out of and in the course of his employment, and (3) the amount of compensation due if any. A hearing on these controverted issues resulted in an award to claimant, and the respondent and its insurance carrier appealed to the district court.
After a hearing in district court in conformity with the provisions of Laws of 1955, Chapter 250, Section 10, now G. S. 1957 Supp., 44-556, the district court found:
“That the deceased workman, Martin W. Kafka did not suffer any accident or injury while in the course of his employment, and further that the deceased at the time of his death was not doing anything except the ordinary work which his employment required him to do.”
and rendered judgment accordingly. Thereupon the claimant perfected this appeal.
Recause it has a direct bearing on other contentions advanced by appellant we are forced at the outset to dispose of one contention made by her in advance of the order in which it was presented.
Conceding the last portion of the findings above quoted is a finding of fact, appellant strenuously argues that the language “That the deceased workman, Martin W. Kafka did not suffer any accident or injury while in the course of his employment,” appearing in such findings is a conclusion of law, hence it is the function and obligation of this court to pass upon that finding as a legal conclusion instead of determining its sufficiency as a finding of fact under well-established rules of this court to which we shall presently refer. The question thus raised lacks merit and cannot be upheld. Indeed it has been disposed of contrary to appellant’s position by numerous decisions of this court.
See, e. g., Gregg v. American Walnut Lbr. Co., 137 Kan. 201, 19 P. 2d 463, where it is held:
“The question whether the disability of the workman is due to an accident arising out of and in the course of his employment is a question of fact, and when once determined by the commissioner of workmen’s compensation, and the district court, it will not be disturbed by this court where there is substantial evidence to sustain it.” (Syl. ¶ 2.)
A more recent 'decision, wherein like contentions were made with respect to similar findings, is Aguilera v. C. & S. Well Service, 178 Kan. 545, 289 P. 2d 1062, where it is said:
“Appellant properly points out that the only question presented to the district court on the appeal taken from the award was whether the deceased workman sustained an injury arising out of and in the course of his employment. The claimed injury was the sustaining of a heat stroke which caused death, and reference will be made later to the evidence bearing thereon. She then argues that the conclusions made by the district court were of law and not of fact. . . .
“Appellant’s contention that the findings and conclusions reached by the district court are of law and not of fact cannot be sustained. The statute pertaining to appeals in Workmen’s Compensation proceedings (G. S. 1949, 44-556), provides that any party to the proceeding may appeal from any award of tire Compensation Commissioner to the district court ‘upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the commissioner.’ On the hearing of that appeal the district court determines the facts, and the conclusions it reaches thereon are of fact and not of law. . . .
“It was the duty of the district court to make an examination of the proceedings before the Compensation Commissioner upon questions of law and of fact as presented by tire transcript, and after concluding what the facts were, to apply the law thereto. A different rule applies when an appeal is taken to this court from any finding or order of the district court, the same statute as is noted above limiting our review to questions of law. We examine the record as it reaches us only to determine if there is evidence, whether opposed or not, warranting the conclusions and findings of fact made by the district court. We are not concerned with evidence from which a contrary conclusion might have been drawn (citing cases).” (pp. 546, 547.)
For other decisions of like import see Miller v. K. S. Flint Rig Co., 155 Kan. 66, 122 P. 2d 734; Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325.
Having established that we are here concerned with an appeal from findings of fact made by a district court in a workmen s compensation proceeding the next step is to determine the jurisdiction and function of this court upon appellate review of those decisions.
For our latest reported decision, dealing with the subject just mentioned, see Madison v. Key Work Clothes, 182 Kan. 186, 318 P. 2d 991, where it is said:
“The jurisdiction of the supreme court on appeal in a workmen’s compensation case is specifically limited to the determination of questions of law. As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support tbe trial court’s finding, and in so doing, all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears such finding is conclusive and will not be disturbed on review. (Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681.) The latest application of the rule is found in Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725; and Murray v. Ludowici-Celadon Co., 181 Kan. 556, 313 P. 2d 728.)” (p. 189.)
See, also, McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652, which holds:
“In an action under the Workmen’s Compensation Act it is the function of the trial court to pass upon the facts and its factual findings cannot be disturbed on appellate review if they are supported by any substantial competent evidence.
“Whether the judgment, of the trial court in such an action is supported by substantial competent evidence is a question of law as distinguished from a question of fact.” (Syl. ¶¶ 1, 2.)
And where, in elaboration of the same subject, it is said:
“The rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of a trial court to pass upon the facts in a workmen’s compensation case and that under G. S. 1949, 44-556 this court is limited on appellate review to ‘questions of law’ which in final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial competent evidence . . .” (p. 251.)
And see Angleton v. Foster Wheeler Construction Co., 177 Kan. 134, 276 P. 2d 325, which holds:
“The supreme court of this state is not vested with original jurisdiction in workmen’s compensation cases, its jurisdiction on review being limited entirely to questions of law.
“On review this court is not concerned with findings made by an examiner and approved by the workmen’s compensation commissioner, or with testimony which might support findings contrary to those made by the district court. Our sole function is to determine whether the record contains substantial competent evidence to support findings made by the district court.” (Syl. ¶¶ 3, 4.)
Many other decisions, where like rules are announced, discussed and applied, are to be found in our reports. For just a few of them see Snedden v. Nichols, 181 Kan. 1052, 1054, 317 P. 2d 448; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 514, 313 P. 2d 725; Beaver v. Tammany Industries, 180 Kan. 440, 304 P. 2d 501; Pinks-ton v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259, and the decisions there cited.
From what has been heretofore related it becomes obvious the all decisive question involved in this appeal is whether the record discloses substantial evidence to sustain the previously quoted factual findings made by the trial court. We are not disposed to prolong this opinion by laboring the evidence adduced by the parties. It suffices to say that after a careful and extended examination of the entire record we are convinced it discloses sufficient competent evidence on which that tribunal, as was its province, could make such findings. That, under the decisions to which we have heretofore referred, means such findings cannot be disturbed and compels an affirmance of the judgment. This, we may add, must be our conclusion under the established law of this jurisdiction even though, as appellant contends and as we frankly concede, there is evidence of record which, if the trial court had seen fit to give it credence, would have supported contrary findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action filed in the district court by G. H. Newcom (plaintiff, appellee), administrator of the estate of John F. Potterf, deceased, against Clarence E. Potterf (defendant, appellant), a son of decedent, in whose name stood title to all of his father s real and personal property, to enforce a trust and to recover assets belonging to the estate for equal distribution among the seven children of deceased. Defendant appeals from an order of the trial court overruling his demurrer to the petition. The sole question presented here is whether the cause of action is barred by the statute of limitations. (G. S. 1949, 60-306.)
We will not attempt to set forth all the allegations of the voluminous petition, part of which alleges acts estopping defendant and his attorneys from asserting the statute of limitations, but will narrate only such part thereof as is necessary to determine the question of law involved in this appeal.
The petition alleged that for several years defendant lived with his father on the “home place,” a farm in Logan county, where they farmed the property and raised cattle. In the spring of 1947, John F. Potterf suffered a stroke and from that day on relied completely upon defendant to manage the farm. On August 14, 1948, John Potterf conveyed the farm and transferred all his personal property to defendant, who orally promised to divide the same equally among his sisters and brothers upon his father’s death.
John F. Potterf died intestate on November 25, 1949, and on several occasions thereafter, particularly in February, 1950, Mabel M. Melton, sister of defendant, asked when settlement and distribution of the property would be made among the children of deceased. Defendant assured her that an honest and equal settlement would be made, but he did nothing. On November 16, 1950, Mrs. Melton had served upon defendant a written demand that he carry out his oral agreement and turn over to her and the other children their rightful shares of the estate. Upon petition, G. H. Newcom was appointed administrator of the estate on November 20, 1950. Thereafter, Mrs. Melton, Adeline Stamey and Marie Escudero, the three daughters of decedent, filed a timely petition in the probate court of Logan county, requesting that the administrator be authorized and directed to bring this suit in the district court of the county for the purpose of recovering from defendant assets belonging to the estate then in his possession.
Plaintiff’s petition further alleged that various legal complications and proceedings arose thereafter. These are summarized as follows:
The honorable Nell Potterf, judge of the probate court, being a relative of the heirs of decedent, certified (G. S. 1949, 59-2402) the petition requesting the administrator’s authorization and direction to the district court of Logan county. Ry reason of the relationship of the judge of the district court to one of defendant’s attorneys, he disqualified, and a judge pro tem was appointed to hear the matter. After the hearing and before the judge pro tem rendered a decision in the matter, he resigned. Subsequently, the petition was presented to the newly elected district judge of Logan county, and the case was heard. In his decision, the judge found that he had no original jurisdiction in the action, and certified (G. S. 1949, 59-2402) the proceedings back to the probate court. Due to the relationship of the probate judge to the heirs of decedent, a judge pro tem had to be appointed, and a further delay ensued. On December 28, 1955, the case was presented to the probate judge pro tem. The judgment rendered by the court, as disclosed by its journal entry filed August 23, 1956, found that there were facts indicating and intending to show assets of the estate of John F. Potterf in the hands of defendant which could be recovered by a suit filed in the district court of Logan county, and that the administrator should bring the action to recover the same. The court ordered plaintiff, G. H. Newcom, administrator of the estate of John F. Potterf, deceased, to institute a suit in the district court of Logan county for the recovery of the' assets of the estate. In accordance with the order of the probate court, plaintiff commenced this action on October 8,1956.
The question of whether the allegations of the petition tolled the statute of limitations confronts this court.
In this jurisdiction, the rule is that if a person is prevented by the pendency of legal proceedings from exercising his legal remedy, the running of the statute of limitations applicable to the remedy is postponed; or if the statute has commenced to run, it is suspended or tolled during the time the restraint incident to the proceedings continues. (In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305, and cases therein cited; Campbell v. Durant, 110 Kan. 30, 35, 202 Pac. 841; 34 Am. Jur., Limitation of Actions, § 237; 54 C. J. S. Limitation of Actions § 247; 37 C. J. pp. 1039, 1040.)
It is disclosed by the record that the administrator was appointed within the time provided by law and that Mrs. Melton and her two sisters, thereafter and in due time, filed a petition with the probate court, asserting that the defendant had assets in his possession which belonged to the estate and requesting the probate court to make an order directing the administrator to recover such assets. This was sufficient notice both to the administrator and to the probate court of such facts. This case is unlike one where neither the administrator nor the probate judge had been advised of the existence in the third party’s hands of property belonging to the estate. Mrs. Melton and her two sisters could do nothing further, as they had no right to maintain an action as heirs to recover property into the estate. (G. S. 1949, 59-1401; In re Estate of Weaver, 175 Kan. 284, 287; 262 P. 2d 818; Waldorf v. Waldorf, 168 Kan. 690, 215 P. 2d 149.)
When an administrator, who is entitled to the possession of real or personal property of the decedent, learns facts sufficient to show that certain real and personal property belonged to the decedent at the time of his death, title to which is in the name of another, he is authorized under the provisions of G. S. 1949, 59-1401 to maintain an action in the district court for the possession of such property. In such a situation, it is appropriate for the administrator, before bringing the action, to advise the probate court of tihe situation and to procure from the court an order directing or authorizing him to bring the action, inasmuch as under the provisions of G. S. 1949, 59-301 the probate court has the authority to direct and control the official acts of the administrator. (Lanning v. Goldsberry, 171 Kan. 292, 232 P. 2d 611; In re Estate of Slaven, 177 Kan. 185, 188, 277 P. 2d 580.)
The probate court did not hear the evidence on the petition filed in behalf of Mrs. Melton and her two sister's, nor did it direct the administrator, over whose official acts it had control, to bring the action, but certified the matter to the district court under G. S. 1949, 59-2402. Its reason for doing so was obviously based on jurisdictional grounds, because of the then prolonged litigation, the matter was held in abeyance and the administrator was not authorized or directed by the probate court to bring this action until after the trial was held in that court on December 28, 1955, as disclosed by the journal entry of judgment filed August 23, 1956.
It clearly appears from the record that the petition of Mrs. Melton and her two sisters requesting that the administrator be directed to bring an action against this defendant for the recovery of assets in his possession into the estate was filed in the probate court in ample time to secure an order from that court and for the administrator to file his action within the limitation period. Their failure to obtain such an order was not due to any lack of diligence on his part but to protracted litigation by persons interested in seeing that said action was not brought. No rights of innocent purchasers of the property in question have intervened. Under all the conditions and circumstances detailed in the petition, we are compelled to hold that the statute of limitations was tolled during the pendency of the litigation. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This action was based upon the doctrine of res ipsa loquitur to recover damages resulting from an explosion causing the destruction of plaintiff’s house in Olathe, Kansas. Defendants Union Gas System, Inc., Skelly Oil Co., Modern Builders, Inc. (appellant), and Charles P. Trager each demurred individually to the amended petition. From an order of the trial court overruling each of the demurrers, Modem Builders, Inc. brings this separate appeal.
The facts, as alleged in plaintiff’s amended petition, are set out in Worden v. Union Gas System, No. 40,850, 182 Kan. 686, 324 P. 2d 501, this day decided. Reference is here made to the statement of facts and to the amended petition attached as an appendix to that opinion.
Appellant argues that the doctrine of res ipsa loquitur is not applicable where the instrumentality which allegedly caused the injury remains intact and where the plaintiff does not allege it was inaccessible for her inspection; that the doctrine may not be invoked where the facts alleged show there was no legal relationship among the multiple defendants so as to render the control of one the constructive control of another, thus making them joint tortfeasors; and, that since it is just as probable the explosion resulted from the negligence of any or all of the other defendants as that of appellant, the circumstances alleged fail to show the accident would not have occurred without fault of appellant, which element is a requisite to invoking the doctrine of res ipsa loquitur.
Since each of these contentions was raised and disposed of adversely to appellant in Worden v. Union Gas System, supra, it is unnecessary to here repeat what was there said. That opinion is adopted and incorporated herein by reference.
This appeal determines only the sufficiency of the amended petition to allege a cause of action against appellant under the doctrine of res ipsa loquitur. We think the facts alleged were sufficient for that purpose. In answer to the amended petition, the defendant may plead and prove, if the facts warrant, its freedom from negligence by showing an intervening cause, vis major, or other proper defense to be relieved of liability. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 166, 300 P. 2d 387.)
The order of the trial court is affirmed.
This case was decided and the opinion prepared and concurred in by Hall, J., prior to his resignation from the court.
Parker, C. J., Price and Schroeder, JJ., dissent.
Jackson, J., not participating. | [
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The opinion, of the court was delivered by
Hutchison, J.:
This is an action by the purchaser of land to recover from the vendor thereof the value of the wheat crop grown on. ninety-five acres of the land purchased, which was growing and immature at the time of the purchase. No reservation of the crop was-made in the written contract or deed, but the vendor claims to have made an oral reservation thereof prior to the execution of the contract and deed. The answer alleged such oral reservation, and on the trial the court admitted evidence as to it. The jury found for the defendant, and specially found there was such oral reservation. Plaintiff appeals, and states in his brief there are only these two questions involved:
“First: Under the pleadings, stipulation and evidence was it competent for' appellee to show by oral testimony that he reserved the ninety-five acres of immatm-e and growing wheat?
“Second: Should the court hold such evidence competent, was there sufficient evidence offered to establish such reservation?”
The appellant contends for the negative of both of these propositions upon the universally recognized doctrine so well expressed in Guaranty Co. v. Grabske, 111 Kan. 271, 207 Pac. 322, from which he quotes as follows:
“It is elementary that a written contract, in itself complete and free from ambiguity, cannot be altered or enlarged by showing prior or contemporaneous oral agreements where the writing purports to be a full expression of the agreement.” (p. 272.)
This necessarily leads us first to the consideration of the statute of frauds, and next to the question of Avhether growing and immature crops are personal property or real property, for the statute of frauds referred to only relates to contracts “for the sale of lands, tenements, or hereditaments, or any interest in or concerning them,” and requires that such contracts shall be in writing. (R. S. 33-106.) In the same connection reference is made to the case of Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133, to show that such crops are a “part of the realty,” and therefore come under the requirements of the statute of frauds. The second paragraph of the syllabus of that decision is as follows:
“Annual crops, which are the product of industry and care, are not, while growing and immature, such personal property as subjects them to attachment and sale on execution.” (Syl. ¶ 2.)
It will be. readily recognized by comparing this opinion with that of the case of Polley v. Johnson, 52 Kan. 478, 35 Pac. 8, to which direct reference is therein made, that the only question involved in these two cases was whether or not growing, immature crops are such personal property as subjects them to attachment and sale on execution, both opinions affirming and expressing the right of the owner to effect a sale of such crops as personal property. Both these questions as to the statute qf frauds and the character of the property have been settled in this state.
“It is not necessary to a valid sale of a growing crop that it should have been reserved in the instrument of conveyance, as an effectual reservation, of a growing crop may be made by parol.” (Dannefer v. Aurand, 106 Kan. 605, syl. ¶ 4, 189 Pac. 371.)
“A sheriff’s deed issued as the result of negotiations between, tenants in common of land for the sale of the land from one to the other is not added to, altered, varied or contradicted by evidence of a parol contract by which all the crops growing or standing on the land at the time of the negotiations are transferred to the purchaser.” (Peterson, Administrator, v. Honaker, 114 Kan. 752, syl., 220 Pac. 1025.)
“A member of the Prairie Band of Pottawatomie Indians can. sell the com growing on the land alloted to him by the government, and the contract of sale is not a contract touching the land or any interest therein.” (McClain v. Miller, 95 Kan. 794, syl., 149 Pac. 399. See, also, Myers v. Steele, 98 Kan. 577, 158 Pac. 660.)
Cases are cited to show that if the oral agreement is not contemporaneous with but prior to the written agreement, the evidence of it is inadmissible, but the cases above cited refute that theory unless the period intervening shows the events to be entirely or nat- • urally disconnected. Our attention is directed to two earlier'Kansas cases, where it was generally held that if the deed did not contain a reservation of the growing crops they would' go with the land, notwithstanding there was an oral reservation. One of those cases was decided on a demurrer to the amended petition, and the other was where a purchaser with oral reservation and deed in blank as to grantee, resold and inserted in the deed the name of his vendee without making any reservation — very unlike our case.
“It is a rule of common law that growing crops are personal property at common law, but they pass by conveyance as appurtenant to the land, unless severed by reservation or exception, and this rule has not been altered by the statute of frauds. It may be shown by parol that growing crops were reserved on a sale of land, although there may be no reservation in the deed.” (8 R. C. L. 372.)
The jury in this case made the following special findings:
“1. On what date did the defendant receive the initial payment of $1,000 to be paid for the farm? A. June 5, 1926.
“2. At that time was the wheat crop on the said farm practically matured? A. On or about June 21, 1926.
“3. Were the terms of the sale agreed upon at the home of the defendant and before the defendant went to Ellinwood? A. Yes.
“4. At the time of the sale of the farm was it orally agreed by the parties that the wheat in controversy would be reserved to the defendant? A. Yes.
“5. On May 22, 1926, was there a crop of immature wheat growing on the premises? A. Yes.”
There were only two witnesses as to the oral reservation, the vendor and the vendee, and their evidence was conflicting. The vendee said the crops were never mentioned during the negotiations except twice — once when he and the owner were looking over the place on his first visit there, when the owner said, “In another five or ten days it would be worth nothing,” because it was already pretty badly burned, and the other time was when the purchaser made his offer for the place.
“I asked him what he wanted for his crops. He said he didn’t know. He asked me what I would give him, and I told him I would give him $14,000 provided he left the crop as it was.”
On the other hand, the vendor testified the crop was mentioned during the negotiation on the first occasion, as follows:
“I told him I wouldn’t sell it less than $14,500, and I was willing to give one-third of the crop. He said he would give me $14,000, offered me $14,000, and he wouldn’t come up and I wouldn’t come down. . . . There wasn’t anything said about the crop then. Mr. Soeken went off.”
On the second occasion:
“On Thursday, May 20, I saw the plaintiff at my place. I suppose between one and two o’clock. Mr. Soeken said he was going to — he wanted to buy the crop of .wheat. I .told him I wasn’t going to sell the crop, I was going to hold it. . . . He said if you don’t want to sell the crop, you keep it. He said if you sell your machinery and horses now you get quite a little more out of it. He said he would like to buy the crop, but I told him I wasn’t going to sell it.”
The vendor also says something was said by the purchaser about giving $15,000, with the crop, and that he ought to throw in the other two-thirds in wheat on the Kessler place (a farm rented by the vendor). These negotiations began at vendor’s place in Ells-worth county on May 16 or 17, 1926. The second interview was at the same place on May 20, when an agreement was reached on $14,-000, of which amount $1,000 was to be cash and the balance in note. Two days later, May 22, vendor, pursuant to the arrangement of the 20th, went to Ellinwood, where vendee lived; and there a banker prepared a written agreement of sale and purchase, which both parties signed, and a deed, which was executed and acknowledged and left with the banker in escrow. Neither instrument made any reservation or mention of the wheat crop, but the agreement contained the following provision:
“It is further agreed between the parties to these presents that the party of the first part is to retain possession of said premises until the-day of -, 19-, when the same shall be delivered up to said party of the second part, upon his compliance with the agreements hereinbefore contained.”
The court overruled motions to set aside three of the findings, to render judgment for plaintiff notwithstanding the verdict, and to grant a new trial, and thereafter approved the verdict and rendered judgment for defendant. We conclude that it was competent for the appellee to show by oral testimony that he reserved the immature and growing wheat, and that the evidence offered was admissible and sufficient to sustain the verdict and establish such reservation.
The court placed the burden of proof on the defendant to establish his defense of an oral reservation of the wheat crop, and instructed the jury that “if you find that there is evidence as to the reservation of the growing crops, a mere preponderance of the evidence is not sufficient, but the defendant must prove such reservation by clear and convincing evidence.” We find no error in the fact that the court failed to explain and define the term “clear and convincing evidence” when the meaning of the word “preponderance” was explained and given.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Harold B. Staples, a minor, by his next friend, to impose a trust upon $5,000 of the proceeds of a policy of government war-risk insurance for $10,000. Harold B. Staples was the son of Bessie C. Staples, a widow, who was married to Clyde Murray on April 6, 1916. At the time of this marriage the plaintiff was four and one-half years old. Bessie C. Murray was the wife of Clyde Murray when he enlisted for the war, took out the insurance mentioned, and continued to be his wife until the time of his death. For some reason not clearly shown Clyde Murray enlisted as a single man. He took out the policy of insurance and named his brother, Lloyd D. Murray, the defendant, as the beneficiary, and about that time gave the defendant directions as to the disposition of the insurance. In a letter to Bessie C. Murray written August 2, 1919, the defendant stated:
“Dear Bessie — Clyde has requested that I write you a line setting forth the substance of the requests made by him to me at the time he took out his government insurance. He requested me to make it a part of my duty as his brother and as a benefactor to promise to see that one-half of his insurance, amounting to five thousand ($5,000) dollars, be used to educate and to promote the best interests of Harold B. Staples, acting jointly with you in executing this duty. My promise was given him at that time and this will serve as a like promise to you for me to fulfill this duty with his best interests at heart at all times. (Signed) Lloyd D. Murray.”
It appears that some time later Mrs. Murray made application to the. government for an allotment as the wife of Clyde Murray, which caused her husband some embarrassment. On January 25, 1920, he wrote to her, saying in effect that such a claim if pressed by her would result in a dishonorable discharge to him, the disgrace of a conviction and loss of the insurance which he said “is equally divided between you and Lloyd, and always has been.” He further said that the insurance was—
“The one and last redeeming act which my worldly efforts could produce, but if this claim of me having a wife or ever having had one is proven; why the whole plan is gone forever, and I can hardly provide other means of protection for four innocent children, Harold and Lloyd’s three, one who [is] fatherless and three who are motherless, and to whom God knows I have in my heart never forgot some allegiance and thought in the end I could bid the world good-bye and say it is well for those behind.”
In the letter he spoke of his enlisting as a single man as a miserable mistake made in pure ignorance, and that there had been no chance to correct the mistake. He added that he had made and forwarded to the government an affidavit to the effect that it was a case of mistaken identity and that he was and always had been single and "if it is proven that I am an impostor why it leaves you and Lloyd loser of $5,000 apiece, and what it means otherwise to the Murray name.” He advised her to keep the facts as to her position and knowledge to herself, except Lloyd, and to let no one know of her position or business and that it might be necessary to disown him as a husband or even as an acquaintance. Two or three days later the defendant wrote a letter to Mrs. Murray in which he spoke of the serious illness of Clyde and the expectation that he would not live beyond the following spring. As to the insurance matter and claim that she had made for an allotment he admonished her that it would not only cause Clyde to be dishonorably rated in the army, but would cancel his insurance, and stated: “You know what you may expect in connection with the payment of this insurance and you know you can absolutely depend upon a square deal from me as per letter written this summer.” He further requested that if she had started anything to cancel it, and she should leave her residence without even giving a forwarding address. After these letters had passed, Mrs. Murray dropped her application for an allotment as the wife of the soldier. It was shown and found that Clyde Murray was extremely ill after returning from the army, and that he was in government hospitals practically all of the time after his return until his death from a disease contracted in the army. During that time he was classified as being completely disabled and was paid $1,870 out of the insurance in question. The plaintiff has never received any of the proceeds of the insurance policy. One of the findings of the trial court is that, “before his death, Clyde S. Murray by letter to the defendant recalled and revoked all requests he had made in favor of the plaintiff.” This finding was based upon a letter to the defendant in which, after speaking of the disposition of his remains and a request that one Lena should share in the insurance, he added: “So far as-Mrs. Murray and her son are concerned, I am done. The requests I have made in Harold’s favor I retract absolutely.” The conclusion of the court was that a trust was not established and that the plaintiff was not entitled to any part of the insurance.
The principal questions discussed on this appeal are, first, was a valid declaration of trust made, and second, if so, was it subject to revocation by Clyde S. Murray, who had requested that a share of the insurance be expended for the benefit of plaintiff.
Defendant argues that nothing tangible passed to him as trustee, nothing that he could take and deliver to the plaintiff, and that the promise or direction was nothing more than a testamentary request that a part of the insurance be devoted to the rearing and education of his stepson, that his stepson was a mere beneficiary in the insurance and that the insured was at liberty to change his beneficiary at any time before his death.
It is the view of the court that a valid trust was not created by the insured, and at most the declaration and promise made did not constitute a complete and executed trust which was beyond the power of revocation. The elements essential to the creation of a trust are that there must be a person competent to create it, explicit words indicating an intention to create a trust, a person capable of holding an ascertainable object as trustee, a definite subject and also a declaration of the terms of the trust. (26 R. C. L. 1179.)
It is the view of the court that when the promise was made .there was no fund in existence, and that unless the insured made the required payments no fund would ever come into existence. Nothing was transferred to the defendant except a request for an application of the proceeds of an insurance policy in which defendant was named as beneficiary. The policy was still within the control of the insured and he was at liberty to change the beneficiary at any time, and at will he could allow the insurance to lapse by failing to make the necessary payments. The designation of a beneficiary was accompanied with a verbal request that the stepson should share in the benefits of the insurance, and since the insured could change the beneficiary and name another than the defendant how could the defendant be regarded as a trustee after he had been ousted and into whose hands no fund had ever been placed. It is true there was no change of beneficiary, but the so-called trusteeship of defendant was no more binding than if a change had actually been made. The fund was something to be received, something to be brought into existence and kept alive by the future action of the insured, and hence it is held that it did not amount to an executed and irrevocable trust. So far as the elements of a trust entered into the transaction, it was executory in character and in some respects had the elements of a testamentary bequest subject to change or revocation without the consent of those to whom the tentative gifts had been promised. Plaintiff was in a sense a beneficiary of the insurance contracted for, but he acquired no greater right than the named beneficiary who could be removed and another substituted by the insured at any time. An express revocation of the promised gift to plaintiff was shown, and hence the holding of the trial court that a trust was not established and that plaintiff was not entitled to recover any part of the insurance, must be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by taxpayers to enjoin the construction of a sewer.system in Valley Center.
Plaintiffs’ objections to the projected improvement were based on the alleged grounds that the ordinance authorizing the creation of the sewer district and the. contract let for its construction were illegal, and that favoritism and unjust discrimination inhered in the formation of the district whereby certain properties which would be benefited by the sewer were left out of the district, and some properties were incorporated therein which would receive no benefit from its construction.
The city and the construction company filed separate answers which traversed the material allegations of plaintiffs’ petition.
On behalf of plaintiffs it was shown that certain town lots adjacent to one of the proposed laterals of the sewer system and contiguous to the eastern boundary of the proposed district had been left outside the district for the reason that the owner, G. R. Davis, had so many such lots that it would bankrupt him to pay sewer taxes thereon. It was also shown that the mayor, and perhaps some of the councilmen, were of opinion that although these lots were left out of the district for the present, they might later be added to the district when they were sold for home-sites to individuals. However, it was also shown that these lots were vacant and unimproved and faced an unopened and merely platted street near the outskirts of the city, and that the sewer system and its service would be of no present value to those lots.
It was also shown that two lots owned by one of the plaintiffs, J. W. Hemme, which were included in the district, were about a block and a half from the nearest sewer lateral, according to a plat of the proposed system; but the accuracy of that plat was controverted, and while this lawsuit was pending in the court below an amended ordinance was adopted correcting what was either an inaccuracy in the plat or a discrepancy in the engineering plan, so that a lateral sewer is now provided which comes up the alley in the rear of Hemme’s lots.
Touching the passage of the ordinance, which among other matters awarded the construction contract, it was shown that the mayor and three of the five councilmen met at the city hall at seven a. m. on March 10, 1927. One of the councilmen, L. E. Morris, was ill in a distant hospital, and another, Thompson, was not in the habit of attending council meetings and had only attended three or four such meetings in two years. The three councilmen present signed a written call for a special meeting of the council at the city hall at seven a. m. March 10, 1927, "to consider the protests filed against the sewer construction and to take such other proceedings in reference to the sewers as may be proper.” This was presented to the mayor on his arrival at the city hall. The mayor called Councilman Thompson by telephone. Thompson said he did not know whether he could be present or not. The mayor and councilmen present waited half an hour and then opened the meeting, which lasted about an hour and a quarter, during which time they passed the ordinance and signed the contract. The early hour was set for the meeting for three reasons,' — the city officials anticipated an injunction suit and were desirous to have the proceedings as far advanced as practicable before they were halted by such interference; the city engineer had to catch an early train that day for Texas on an important errand; and the attorney who was advising and assisting the city officials in the legal formalities pertaining to the proposed sewer system had business in court that morning at 9 o’clock.
The trial court gave judgment for defendants; and plaintiffs appeal, contending, first, that the omission of the Davis lots from the sewer district was arbitrary and fraudulent. The trial court did not think so. The boundary lines of the sewer district had to be placed somewhere, and of necessity some lots outside the district lay immediately adjacent thereto. Such were the lots of Davis. He had a considerable number of such lots, unoccupied and unused, and fronting on an unopened, unused street. Notwithstanding their proximity to one of the proposed sewer laterals and their contiguity to the sewer district they would not be benefited for the time being by their incorporation in the sewer district, and the special sewer tax burden would be a hardship on Davis, and might, as the mayor and council believed, “break him.” Neither was the district as created invalid because the mayor and council “thought” that later, if and when the Davis town lots were sold for home-sites, those lots could then be incorporated in the sewer district. This court is not convinced that such contemplated future action could not be taken, but the point need not now be decided. At all events the mayor and council were not greatly mistaken. If and when the Davis lots are attached to the sewer their owners will have to pay for that privilege, perhaps not technically in the form of sewer district assessments, but they will pay whatever amount is equitable and proper for permission to connect with the sewer. There was no apparent abuse of discretion in fixing the boundaries of the sewer so as to omit therefrom the Davis lots, and that matter was vested in the discretion of the city government, not in the courts. (R. S. 12-617 et seq.; Hildreth v. City of Longmont, 47 Colo. 79. See, also, Warner v. City of Independence, 121 Kan. 551, 558, 247 Pac. 871.)
It is also contended that the ordinance and contract of construction were vitiated because the Hemme lots were included in the sewer district, when according to the proposed locations of laterals they would not be benefited. But it seems just to accept in good faith the explanation of the city engineer and the mayor that it was not intended that there would not be a sewer lateral in convenient proximity to Hemme’s lots; and it was asking quite too much of the trial court to enjoin this entire sewer system even if Hemme’s two lots are not to be benefited and are included within the district con-' fines. If they are not to be benefited, no lawful assessment can be levied against them. (Gilmore, County Clerk, v. Hentig, 33 Kan. 156, syl. 1, 5 Pac. 781.) But the inclusion of town lots within the district which cannot be benefited and which in consequence cannot be subjected to assessments to pay for the sewer does not invalidate the organization of the sewer district. (Cohen v. City of Alameda, 183 Cal. 519; Aumiller v. City of North Yakima, 73 Wash. 96; Bass v. City of Casper, 28 Wyo. 387, 205 Pac. 1008.)
Passing next to the attack upon the ordinance of March 10, and the contract of construction awarded at the special meeting that morning, the fact is urged that the written call for the special meet-, ing was not signed by the three councilmen until they met at the city hall that morning. But the statute authorizing such meeting on the written request of three councilmen does not prescribe anything which was omitted in this call. It merely declares:
“. . . Special meetings may be called by the mayor or acting mayor, on written request of any three members of the council, specifying the object and purpose of such meeting, which request shall be read at the meeting and entered at length on the journal. . . .” (R. S. 15-106.)
It is also urged that the notice of the special meeting of the mayor and council and the action taken thereat was “at such a time in the morning that no reasonable opportunity was given for all the councilmen to be present.” Under the circumstances we think this ground of attack on the validity of the meeting and the official action taken thereat is not tenable. No reasonable length of time for notice would have brought about the attendance of the councilman who was sick in a distant hospital, nor would it have induced the presence of Councilman Thompson, who had sufficient notice but who merely did not attend because he was not in the habit of attending. In his telephone response to the mayor’s communication Thompson did not intimate that if the meeting were put off for another hour or two he would attend; His unsatisfactory response to the mayor’s telephone call was a sufficient reason for those present — being a quorum — to proceed after they had waited long enough for Councilman Thompson to get there if he were so inclined. The record gives no hint that if the quorum present had waited another hour, or two hours, or three hours, Councilman Thompson would have been on hand. While the rule is quite sound and proper that all the members of a city government, or of any other official body, should have a reasonable opportunity to attend a special or called meeting at which public business is to be transacted, that rule does not operate to prevent the expeditious dispatch of official business because of the absence of a member who is sick and unable to attend (Knoxville v. Knoxville Water Co., 107 Tenn. 647, 61 L. R. A. 888), nor because of the absence of a member through his mere habit of nonattendance. (State, ex rel., v. Kirk, 46 Conn. 395; Gale v. City of Moscow, 15 Ida. 332; Consolidated Sch. Dist. v. Griffin, 201 Ia. 63; 28 Cyc. 327, 329, 330. See, also, Hartzler v. City of Goodland, 97 Kan. 129, 133, 154 Pac. 265.)
Plaintiffs finally contend that the contract for the construction of the sewer was illegal because it was awarded immediately after the passage of the ordinance on May 10 and before its publication. The validity of the contract did not depend' on the ordinance of March 10. There is no statute requiring such contracts to be awarded by ordinance in cities of the third class like Valley Center. The pertinent statute reads:
“When the governing body in any city of the third class in counties of more than 90,000 population [and Valley Center in Sedgwick county is such a city] which shall deem it necessary to . . . build or construct any sewer within the limits of the city, for which a special tax is to be levied, such governing body shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published for three consecutive weeks in the official paper of the city, 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 such 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 provided by law, and the work may be done before, during or after the collection of the special assessment, as may be deemed proper by the governing body . . .” (R. S. 15-702.)
There was no want of conformity with this statutory routine. A resolution declaring the necessity for the construction of a sewer system was adopted February 1,1927, and published for three weeks beginning February 3. By March 10 the time for taxpayers to protest had expired, and there was then no legal impediment to the letting of the contract, and the publication of the city ordinance was not a prerequisite to the validity of the contract awarded on that date. (Ransom v. Minnick, 92 Kan. 953, 142 Pac. 934; Smith v. City of Courtland, 103 Kan. 142, 172 Pac. 1027. See, also, Middleton v. City of Emporia, 106 Kan. 107, 186 Pac. 981.)
This record discloses nothing which would justify a reversal of the trial court’s judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Pancake House, Inc., (PHI), filed an action against the defendant attorneys for legal malpractice after the defendants, who had represented the plaintiff corporation for approximately twenty years, chose to represent the individual interests of certain stockholders of the corporation against the corporate client. The plaintiff contends that the defendants’ filing of a lawsuit against Pancake House, Inc., was malicious in nature, negligent, a breach of a fiduciary duty and a breach of implied contract. A motion for judgment on the pleadings was granted to the defendants on the grounds that the action was barred by the statute of limitations. Plaintiff appeals.
Except for two years, from 1960 through 1979 the defendants’ law firm, or its predecessor, prepared the corporate documents and drafted the corporate minutes and lease extensions for Pancake House, Inc.
Following the death in 1980 of one of the two principal stockholders, Jay Conover, the remaining shareholders of PHI were at odds with each other concerning the ownership of stock, the effect of a shareholders’ agreement and the management of the corporation. On October 1, 1980, Sherman Sampson, the other principal stockholder and president of PHI, filed a suit against the estate of Jay L. Conover, seeking the enforcement of a buy-sell agreement which required PHI to buy Conover’s stock in PHI.
On October 16, 1980, defendant Redmond filed a suit on behalf of the Conover family against Sampson and PHI, alleging that, as a result of the disputes between the families, the corporation was deadlocked. The suit asked that a custodian for the corporation be appointed and, in the event that matters were not resolved, the corporation be dissolved. The court issued a temporary restraining order enjoining Sampson “from performing any acts as President in violation of the Kansas Corporation Code; from issuing any further dividends; from increasing his salary; or from taking any acts as President which are at variance in which the corporation functioned prior to the death of Jay L. Conover.”
On November 10, 1980, the court denied the injunction requested by the defendants’ attorneys, but did find PHI was deadlocked. A restraining order was issued requiring PHI to pay all dividends owed to the Conover estate and other specified stockholders into the clerk of the district court.
On December 31, 1980, Christopher Redmond withdrew from representation of the Conovers in both the suit filed by Sampson against the estate and the suit filed by the Conovers against PHI. Another firm assumed representation for the Conovers.
The two cases were consolidated and heard on April 26, 1982. A journal entry filed on September 7, 1982, ordered PHI to purchase all of the Conover stock and awarded certain other damages for misappropriation of corporate vehicles by the Con-overs to PHI.
On August 26,1983, Sampson and PHI sent a demand letter to PHI’s former law firm, claiming that the suit Redmond filed against PHI was without probable cause, was malicious, and was a breach of fiduciary duty. When Redmond failed to reply to the demand, the plaintiff filed the present suit on October 25, 1983. PHI’s petition alleged: (1) a claim for malicious prosecution; (2) that the defendants’ act in filing suit against plaintiff was “negligence by the defendant attorney” against PHI; (3) the defendants committed an intentional tort and breach of a fiduciary duty; and (4) the defendants breached an express or implied contract between PHI and the defendant attorneys. The defendants filed a motion to dismiss, claiming the statute of limitations had run for all claims. The district court sustained the motion and plaintiff appeals.
PHI argues that it has alleged a cause of action in contract for breach of an implied agreement and that the three-year statute of limitations applies. K.S.A. 60-512(1). The defendants contend that the cause of action is in tort, not in contract, and that the two-year statute of limitations has run. K.S.A. 60-513(a)(4).
A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties. Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976).
Legal and medical malpractice generally constitute both a tort and a breach of contract. An action for liability of an attorney on the grounds of negligence for failure to discharge his professional duty to a client rests on the employment contract and therefore is contractual in nature. Where the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby, the action is contractual. Where the essential claim of the action is a breach of a duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort. Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984).
Not all malpractice actions in Kansas may be deemed tort actions, however. In Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973), the plaintiff sued his attorney for failure to file a timely appeal on behalf of his client in a condemnation proceeding. The court said this was a breach of a specific contract — failure to do that which the attorney expressly agreed to perform. The real basis of the claim for relief was financial loss resulting from failure to discharge a contractual obligation (proof of which contract, breach and loss is another matter). Consequently, the claim for relief alleged was one founded on unwritten contract to be governed by the three-year statute of limitations provided in K.S.A. 60-512 (1).
While other jurisdictions are divided as to whether legal malpractice may be categorized as a cause of action in tort or one in contract, Kansas has held that where a legal duty is imposed by law, the cause of action is in tort. Where the malpractice involves failure to perform a contractual obligation, whether express or implied, the cause of action is in contract. In the present case, the plaintiff contends that the defendants’ malpractice involved negligence, a conflict of interest, and a breach of implied contract and of fiduciary duty. These all had to do with the defendants’ filing a lawsuit against the plaintiff. The defendants’ action was not a part of any express or implied contract. Therefore the action must sound in tort. The district court was correct when it dismissed PHI’s fourth claim that the attorneys had a duty to PHI based on implied contract.
The plaintiff s next claim, that the statute of limitations was tolled until the suit Redmond filed against PHI was settled, is actually an accrual argument. PHI is actually arguing that its suit for malpractice did not accrue until it suffered substantial dam ages, not that the statute was tolled. The defendants contend that on October 16, 1980, when the suit against PHI was filed, the cause of action accrued and the statute of limitations began to run.
In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion. Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 548, 545 P.2d 312 (1976); Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P.2d 797 (1970).
Depending upon the facts and circumstances of each case, there are at least four theories which can apply to attorney malpractice in Kansas as to when the accrual of a cause of action occurs and the statute of limitations begins to run. These include:
(1) The occurrence rule — the statute begins to run at the occurrence of the lawyer’s negligent act or omission.
(2) The damage rule — the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
(3) The discovery rule — the statute does not begin to run until the client discovers, or reasonably should have discovered, the material facts essential to his cause of action against the attorney.
(4) The continuous representation rule — the client’s cause of action does not accrue until the attorney-client relationship is terminated.
For cases discussing all four points see Annot., 32 A.L.R.4th 260; ARA/BNA Lawyers’ Manual on Professional Conduct § 301:901 (1985); Mallen and Levit, Legal Malpractice § 388 et seq. (2d ed. 1981).
In a similar case, Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 565, 571 P.2d 62, rev. denied 225 Kan. 843 (1977), plaintiff seller employed an attorney to represent him in selling some stock. After an agreement to sell had been approved, the seller refused to honor the sale, refunded the purchase price to the buyer and discharged his attorney. The buyer decided to enforce the stock purchase and retained the seller’s former attorney. The attorney returned the seller’s check to his former client’s new attorney and filed an action against his former client. A decision was rendered against the seller on August 20, 1974.
On March 22, 1976, the seller then filed an action against his former attorney and the purchaser, alleging he had suffered substantial injury when his former attorney returned his check to him and chose to represent the buyer. The Court of Appeals determined that the tort action accrued when the act alleged by the seller to have caused substantial injury occurred. The court then determined that after the alleged injury occurred, the seller had failed to file his action against his former attorney within the two year limitation. K.S.A. 60-513.
The substantial injury theory has been used in other types of tort cases. For example, see Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P.2d 265 (1972); Webb v. Pomeroy, 8 Kan. App. 2d 246, 655 P.2d 465 (1982).
Here, PHI alleges that the malpractice committed by the defendant was the filing of the suit against PHI. PHI contends, however, that substantial damage was not suffered by it until after the trial and the filing of the journal entry on September 7, 1982. It argues that the malpractice claim accrued at that time because PHI could not file the action against its former attorney until the original action filed by its former attorney had been decided in its favor. Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980).
We agree that PHI did not suffer any damages until it had to defend against the suit filed by its former attorneys. It was not until the journal entry of judgment was filed on September 7, 1982, that it suffered sufficient damages for the tort to accrue. PHI filed this suit on October 25, 1983, within two years of the date when the action accrued. Therefore, the district court should not have ordered PHI’s tort claims dismissed.
The attorneys contend that Count I of PHI’s petition alleges a claim for malicious prosecution. K.S.A. 60-514(2) requires actions for malicious prosecution to be brought within one year. An action for malicious prosecution cannot be brought if the original action is still pending and undetermined. Nelson v. Miller, 227 Kan. at 280. Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923).
The district court, in the actions brought by PHI against the Conovers and by the Conovers against PHI, issued a written memorandum decision on June 29, 1982. That was incorporated in a formal journal entry on September 7, 1982. This suit was filed on October 25, 1983, more than one year after the termination of the suit against PHI. Therefore, the district court correctly found that a cause of action for malicious prosecution was barred by the statute of limitations.
It is held that the plaintiff s alleged cause of action was based upon the attorney-client relationship and was thus a breach of a duty imposed by law, a tort. Under the factual circumstances stated, the plaintiff s claim against its former attorney did not accrue until the plaintiff had suffered substantial injury.
Other issues raised need not be discussed.
The judgment of the district court is affirmed in part and reversed in part. The case is remanded to the district court for further proceedings.
Holmes, J., not participating. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Taxpayer appeals the decision of the Graham County District Court upholding a ruling of the Kansas Board of Tax Appeals which determined that computer software was taxable as tangible personal property.
The appellant, Thomas D. Strayer, is a certified public accountant. In November of 1981, Strayer purchased a computer from Computax Systems, Inc. Additionally, Strayer executed a licensing agreement with Computax at a cost of $7,010. The agreement provided for the use of certain computer software programs. Annual renewal of the license agreement cost one-half of the initial fee. The agreement required Computax to update the software as needed during each year and to provide other services. The bulk of the annual fee paid for the use of an income tax preparation software program.
Under the agreement, the software program and later updates are shipped by Computax on eight-inch floppy disks. Since the disks wear out through usage and are subject to damage, Strayer may make as many copies of these disks as he needs before returning the originals to Computax.
In 1982, Strayer listed the computer for personal property tax assessment, but did not list the software programs. The Graham County Assessor asked to see invoices regarding the purchase, noted the initial fee charged for the software and insisted that the software was subject to personal property tax assessment. Personal property taxes were assessed, using the initial licensing fee paid as the market value. Strayer paid that portion of the 1982 taxes attributable to the software under protest and filed an application for refund of those taxes with the Board of Tax Appeals.
The Board of Tax Appeals determined that computer software was tangible personal property, subject to personal property taxation, and that since title to the software remained with Computax, Computax was liable for the personal property taxes. Computax’s license agreement with the program utilizer requires him to reimburse the company for the tax assessed, and to challenge any taxation.
A statement of background is necessary for a general understanding of the technical aspects of the case. A functioning computer is a combination of hardware and computer programs, sometimes called “software.” The electronic data processing industry is made up of a number of companies which offer numerous types of products and/or services to users of electronic data processing equipment. The data processing equipment is often referred to as computer hardware. Computer programs are the instructions which make the data processing equipment perform tasks and include “operational programs,” which orchestrate the basic functions of the computer, and “application programs,” which provide the particularized instructions adapted for specialized programs.
Computer software was traditionally viewed as an integral part of the computer hardware unit until 1969, when IBM announced that it would price its hardware separately from its software and services. Due to the uncertain nature of the software and the inexperience and lack of skill of both taxpayers and state assessment agencies in classifying software, local taxing authorities and taxpayers have been in conflict since that date over whether software constitutes tangible personal property or intangible intellectual property. Annot., 82 A.L.R.3d 606 § 2.
Following the IBM announcement, the Internal Revenue Service promulgated Rev. Proc. 69-21 § 3, 1969-2 C.B. 303, which provided guidelines for IRS agents in the tax treatment of computer software. Rev. Proc. 69-21 stated:
“The costs of developing software (whether or not the particular software is patented or copyrighted) in many respects so closely resemble tire kind of research and experimental expenditures that fall within the purview of Section 174 of the Internal Revenue Code of 1954 as to warrant accounting treatment similar to that accorded such costs under that section.”
Section 174 provides that a taxpayer may elect to treat development costs as current expenses or as a capital expenditure. Rev. Proc. 69-21 § 4, however, pointedly identifies all software as intangible. Note, The Revolt Against the Property Tax on Software: An Unnecessary Conflict Growing Out of Unbundling, 9 Suffolk U.L. Rev. 118, 131 (1975).
The taxpayer here, relying on the case law from our sister states, contends that computer software is intangible personal property and not subject to the Kansas personal property tax placed upon tangible personal property. The County contends that, under Kansas statutes, computer software is not classified as intangible property and is, therefore, taxable as tangible personal property.
Almost all states which have considered the nature of computer software have found that the software is intangible personal property. This is generally based on the idea that the information contained on the software is the product being sold, that this information can be transmitted in many forms, including over the telephone, and that the information often becomes outdated and must be replaced. Only one state has found that software is tangible personal property, but the appellate court noted it could not determine from the record how to apportion the purchase price between operational and application functions of the software.
One of the first cases discussing this issue was District of Columbia v. Universal Computer Assoc., Inc., 465 F.2d 615 (D.C. Cir. 1972). The District of Columbia Tax Court had held that certain computer software represented intangible values and was not subject to personal property tax. The software consisted of two sets of punched cards, one set containing the standard program developed by IBM to run the computer and one. set containing a special tax program. The material of the punched cards themselves was of insignificant value. It was for the intangible value of the information stored on the cards that Universal was charged. How the information was created, who had title, and how the information was put on the computer — all supported the court’s conclusion.
In Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn. 1976), the State argued that the purchase of consumer software was analogous to the purchase or lease of a motion picture film. The court distinguished the computer software from motion picture films, noting that the latter constituted an end product without which the labor, skills and thought processes which went into its creation would prove meaningless. Absent the film, the taxpayer had nothing. The computer tapes and cards, however, were not a finished product. It was the information they contained which constituted the valuable resource.
In First National Bank v. Dep’t of Revenue, 85 Ill. 2d 84, 421 N.E.2d 175 (1981), the Illinois court said that the test to determine whether property is tangible is whether the tape is the substance of the transaction or merely incidental to a service. The Illinois bank purchased the software as a means of programming its computer so that it could perform functions the bank needed to have performed. The tapes were certainly not the only medium through which the information could be transferred. In this way, the tapes differ from a movie film, a phonograph record or a book, whereby the media used are the only practicable ways of preserving those articles. Thus, while those articles and the tapes are similar in that they physically represent the transfer of ideas or artistic processes, a more significant distinction is that those articles are inseparable from the ideas or processes, whereas computer programs are separable from the tapes. Bryant & Mather, Property Taxation of Computer Software, 18 N.Y.L.F 59, 67 (1972). It was not the tapes but the information which was the substance of the transaction.
Missouri reached a similar conclusion in James v. Tres Computer Service, Inc., 642 S.W.2d 347 (Mo. 1982). It concluded that the tapes used for the programs were not the ultimate object of the sale and that it was not necessary that the information purchased be put on tape for it to be transmitted to the user.- It said that the presence of the data on the tapes is merely an incidental physical commingling of the tangible tapes and the intangible information which is actually the subject of the transaction. It concluded that if the tapes serve only to convey the computer data and then are discarded, the value of the professional services is not considered taxable as tangible personal property.
In Maccabees v. Treasury Dep’t, 122 Mich. App. 660, 332 N.W.2d 561 (1983), the court noted, in holding that the software was intangible personal property, that any tangible personal property attendant to software is inconsequential because software can be entered into a computer via telephone lines; communications media, such as punched cards and tapes, are transitory and are destroyed or reused after the software is entered into a computer; the software program exists as imperceivable binary pulses; and the tangible communications media has little or no value apart from the program. It said the focus of the transaction is on the personalized service of the software vendors, an intangibles transaction.
Alabama held that computer software was intangible personal property in State v. Central Computer Services, Inc., 349 So. 2d 1156 (Ala. App. 1977). The court concluded that it was the knowledge, the information contained on the tapes, which was the main characteristic of the software, and such information was intangible property.
Maryland is the only state to find that computer software is tangible personal property. In Greyhound Computer v. St. Dep’t, 271 Md. 674, 320 A.2d 52 (1974), 82 A.L.R.3d 597, the court considered whether computer software — programs, educational services, and systems engineering services — which had been “bundled” in the cost of computers purchased by Greyhound and another company from IBM and leased to others was tangible personal property.
The State’s major contention in that case was that even if software were severable from the hardware and even if a separate price could be established for it, these items still constituted tangible personal property since the value of an article consisted, in large part, of the cost and skill used in producing it and not primarily of the cost of the material from which it was made. The court could not determine from the record what portion of the purchase price was attributable to such of the software that was “systems software” or what portion was attributable to “applications software.”
California has taken a different approach to the problem. The state legislature has amended the state’s tax code so that software is divided into two types — systems software and application software. Cal. Rev. & Tax Code §§ 995, 995.2 (West 1986 Supp.). Only the basic operational programs are taxed on the theory that taxation of application programs would be detrimental to research and an expansion of business activity within the state.
The power to levy taxes is inherent in the power to govern, but the exercise of that power is dependent upon the existence of legislation designating the kinds of property to be taxed and nothing is taxable unless clearly within the taxing statute. Robbins-Leavenworth Floor Covering, Inc. v. Leavenworth Nat’l Bank & Trust Co., 229 Kan. 511, 625 P.2d 494 (1981). Tax statutes are penal, and thus must be strictly construed in favor of the taxpayer. J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 680 P.2d 291 (1984). The liberal construction rule for statutes is subject to the principle that all rules of statutory construction are merely for the purpose of ascertaining the intention of the legislature as expressed in the statute. A liberal construction of a statute does not permit the courts to read into a statute something that does not come within the wording used in the statute. But, statutes must be construed with reason, considering the practicalities of the subject matter addressed. Anderson v. Overland Park Credit Union, 231 Kan. 97, 643 P.2d 120 (1982).
Using the rules of statutory construction, can we determine from the Kansas statutes whether the legislature intended computer software programs to be taxed as personal property or fall within the definition of intangible property?
K.S.A. 79-101 provides for the taxation of all property in the state. K.S.A. 1985 Supp. 79-201 describes what property is exempt from taxation. Generally, the legislature has the authority to provide that property other than that named in the Kansas Constitution may be exempt from taxation, but this exemption must have a public purpose and be designed to promote the public welfare. Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975). Computer software is not included in this listing and therefore must be either: (1) tangible personal property subject to the personal property tax; (2) intangible property; or (3) a mixture of personal property and intangible property, depending upon the character or function of the particular software program.
K.S.A. 79-102 defines personal property to include every “tangible” thing other than real property which is the subject of ownership. The legislature has not defined “tangible.” K.S.A. 79-301, 79-303, 79-304 and 79-306 discuss the listing of “tangible” personal property for the purposes of taxation.
“Tangible” is not defined in the statutory sections dealing with personal property taxes. It is defined in K.S.A. 1985 Supp. 79-3602(f), the sales tax section, as “corporeal personal property.” Corporeal is not defined in the statutes. Black’s Law Dictionary 310 (5th ed. 1979), defines corporeal as:
“A term descriptive of such things as have an objective, material existence; perceptible by the senses of sight and touch; possessing a real body.”
Under the intangibles tax law, K.S.A. 1985 Supp. 12-1,101, intangibles are defined as “money, notes and other evidence of debt.” K.S.A. 12-1,102(a) defines money to include gold and silver coin, United States treasury notes, and other forms of currency. Notes and other evidence of debt are defined in 12-1,102(b) to include stock certificates, notes, bonds, debentures, claims secured by deed, liquidated claims and demands for money, accounts receivable, and all written instruments, contracts or other writings evidencing, calling for, or fixing or showing a fixed obligation. There are other forms of intangible property, such as good will, franchises, patents, copyrights and trademarks which are not listed within the statutes.
K.S.A. 84-9-106 of the Uniform Commercial Code defines “general intangibles” as “any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments and money.” The Kansas Comment 1983 under 84-9-106 defines two key types of “intangibles.” The first type is “account” and the second “general intangibles.” The term “general intangibles” continues as a catch-all to pick up collateral which does not fit any other Article 9 category. It includes, for example, a tax refund, computer software, patent rights, trademarks, goodwill, a vendor’s interest in an installment land contract, certain partnership interests in commercial real estate, and other offbeat intangible collateral. “When the secured party is not sure how to categorize collateral, he should assume that it qualifies as a general intangible, and file accordingly.” K.S.A. 84-9-106, Kansas Comment 1983.
For the most part, software has come into existence since the tax statutes in this state were written. The fact that the legislature has designated that certain property be taxed under the intangibles tax does not mean that there are no other types of intangible property or that all other types of property must thus be tangible. Whether computer software should be treated as tangible personal property subject to the personal property tax or as intangible personal property not subject to the tax must be determined with reason, considering the practicalities of the subject matter addressed.
Using the guidelines for statutory construction, we determine that under the tax statutes, software programs which constitute the operational programs, without which a computer cannot operate, have a value that is to be considered an essential portion of the computer hardware and are therefore taxable as tangible personal property in conjunction with the hardware. Application programs, those which are particularized instructions adopted for special programs, are intangible property not subject to the personal property tax for tangible property.
It is held that the tax program obtained by the taxpayer under the licensing agreement was composed of particularized instruction for the computation of taxes, and thus was an application software program. Application programs are intangible property and not subject to the personal property tax on tangible property.
Since we have determined that the tax program is an application software program, i.e., intangible property, we need not discuss other issues raised by the taxpayer.
The decision of the district court is reversed. | [
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Per Curiam-.
Plaintiff, James E. Paulsen, Jr., brought a personal injury action against his woodworking teacher and U.S.D No. 368 for injuries he sustained while operating a table saw in his woodworking class. Paulsen claimed his teacher had failed to: (1) properly instruct on safe use of the saw; (2) keep the saw in proper working condition; and (3) properly supervise the classroom. He contended that U.S.D. No. 368 had failed to: (1) properly supervise the teacher, and (2) provide a reasonably safe environment for the students. Each of the defendants moved for a directed verdict after the plaintiff had completed his presentation of evidence to the jury. The district court granted the defendants’ motions after finding that they had breached no duty to the plaintiff.
On February 10, 1982, the plaintiff, James E. Paulsen, Jr., was enrolled in an advanced woodworking class at Paola High School, U.S.D. No. 368. The class was taught by the defendant, Leroy C. Detwiler. Paulsen was working on a project that day which required him to cut several boards. Twenty minutes prior to when Paulsen attempted to use an Oliver table saw, the instructor replaced the saw’s blade and left the safety guard lying on the floor beside the table saw. Using the table saw without the safety guard, Paulsen cut several boards and then attempted to reach around with his right hand and remove a scrap of wood that was near the saw blade. His hand came into contact with the blade, resulting in severe lacerations to several of his fingers.
Detwiler, who was in the classroom, immediately came to Paulsen’s assistance. Paulsen was taken to Miami County Hospital where a doctor contacted a specialist in Kansas City. He was then transported to Shawnee Mission Medical Center where he had surgery on his hand.
Paulsen’s injuries required additional operations, and he still has problems with the injured hand. Paulsen filed this action against the school district and Detwiler. The jury trial was held February 24, 1985. Following the presentation of the plaintiff s case both defendants moved for a directed verdict, which the district judge granted. The plaintiff appeals and both defendants cross-appeal, all claiming that the trial judge committed numerous errors during the trial.
The district court first determined that defendant Detwiler owed the plaintiff a duty to properly supervise him and that the defendant school district owed the plaintiff a duty to supervise the defendant Detwiler and to provide a reasonably safe environment for the students enrolled in the classes in Unified School District No. 368.
The district court held that the defendants had not breached those duties and granted the motions for a directed verdict. Paulsen contends that the court erred in granting the motions, because there was evidence that the defendants had breached their duties.
Paulsen had taken a beginning woodworking class the previous year where he was instructed in the proper use of power tools. That class spent four to six weeks discussing safe use of the tools, and two of those weeks were spent on the Oliver table saw. Paulsen had passed a test on safe use of the saw. During his second year of woodworking, Paulsen was again instructed on the safe use of the table saw and again passed a test on safety prior to use of the equipment.
Evidence showed that the instructor failed to enforce the safety rule that the table saw not be used without the safety guard. Detwiler had no particular rules or policies as to using the saw without the guard, although he testified that he “tried to oversee it” when students were using it without a guard. He had taught all the students, including Paulsen, how to put the guard on and take it off. Even though Detwiler testified that the table saw was the most dangerous piece of equipment the students used, it was his belief that it was often safer to use the table saw without the safety guard. Detwiler knew students were using the table saw without the guard, but did not stop students from doing so.
During the class period in which Paulsen was injured, Detwiler had removed the guard to replace the blade. He did not replace the guard on the table saw after changing blades. Instead, he left the guard lying on the floor next to the saw. A short time later, Paulsen began using the saw without the guard in place and was injured.
There was also evidence that the instructor did not enforce safety requirements for students using the table saw, indicating a lack of supervision of the students by the teacher.
The general rule in this jurisdiction, and elsewhere, is that when one of the justices is disqualified to participate in a decision of issues raised in an appeal and the remaining six justices are equally divided in their conclusions, the judgment of the trial court must stand. Thornton v. Shore, 232 Kan. 394, 654 P.2d 475 (1982); State, ex rel. v. Hill, 223 Kan. 425, 573 P.2d 1078 (1978); Scott v. Harber, 187 Kan. 542, 358 P.2d 723 (1961); Blasi v. Miller, 181 Kan. 967, 317 P.2d 414 (1957). See also Kansas Constitution, Art. 3, § 2, which provides that the concurrence of four justices shall be necessary to a decision.
Chief Justice Schroeder, Justice Holmes and Justice McFarland would affirm and Justice Prager, Justice Herd and Justice Lockett would reverse.
The judgment of the trial court is therefore affirmed by an equally divided court.
Miller, J., not participating. | [
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This original action in discipline was filed by Arno Windscheffel, disciplinary administrator, against Melvin Ralph Winters, Jr., of Wichita, an attorney formerly admitted to the practice of law in the State of Kansas.
In December 1979, respondent recovered judgments on behalf of his clients, Yvonne May and David Ware, against one Lowell Lygrisse and others. The May judgment was in the amount of $55,970 and the Ware judgment was $18,060. In the spring of 1981 respondent hired Emery L. Goad, a private investigator, to attempt to ascertain if Lygrisse had any assets subject to execution. Goad discovered substantial assets and repeatedly reported them to respondent and asked respondent to take some action to collect the judgments. Ms. May also contacted respondent repeatedly, asking that he take action to levy upon the available assets of Lygrisse. Respondent did nothing and moved from Wichita in 1982 without advising his clients or making any arrangements for their further representation.
Throughout these proceedings respondent has totally neglected to cooperate with the office of the disciplinary administrator. He failed to respond in any manner to the complaint, failed to appear before the panel of the Board for Discipline of Attorneys after having been notified to do so and failed to appear before this Court when ordered to do so. In addition, respondent has failed and neglected to comply with Supreme Court Rule 208 (235 Kan. cxxvii).
The Board for Discipline of Attorneys found that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3), 235 Kan. cxlvii, failed to cooperate with the office of the disciplinary administrator, and failed to comply with Supreme Court Rule 208. The Board recommended that respondent be indefinitely suspended from the practice of law in the State of Kansas.
The Court, having carefully considered the record herein, adopts the findings, conclusions and recommendations of the Board for Discipline of Attorneys.
It Is Therefore Ordered that Melvin Ralph Winters, Jr., be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that the costs herein be assessed to the respondent and that this order be published in the official Kansas Reports.
Effective the 2nd day of May, 1986. | [
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The opinion of the court was delivered by
Miller, J.:
May contempt proceedings be used to enforce the payment of past due installments of court-ordered child support after the children have reached majority? That is the principal issue presented in this appeal.
The plaintiff, Shirley J. Crumpacker, and the defendant, John K. Crumpacker, were divorced in 1969. John was required to pay child support. The parties had a farming and dairy operation. The land and the bulk of the income producing assets were awarded to John, and Shirley was given a money judgment which was paid a few months after the divorce. John conveyed part of his land to his parents and another part to his second wife, Virginia. He continues to carry on the farming and dairy operation, doing business in the name of his second wife, and she has title to all of the assets.
Child support payments were continually in arrears. Various attempts were made to enforce the judgment and finally, in 1974, the trial court found John in contempt; that action produced a substantial payment. Problems continued, and a substantial arrearage existed when the youngest child became eighteen years of age and reached majority on May 15, 1984. The older son is completing his college work at Kansas State University and has been accepted in a medical school; the younger son is a student at Salina Vo-Tech.
Plaintiff commenced contempt proceedings in November 1984 in an effort to enforce the arrearage. The trial court found John to be in willful disobedience to the court’s order, and thus in indirect civil contempt. The court held that the contempt power to enforce court-ordered child support continues even though both children have reached majority. The trial court ordered the defendant to submit a payment plan by March 15, 1985, and the court deferred the imposition of sanctions. On April 8, 1985, the trial court sentenced the defendant to jail, but suspended the sentence subject to defendant making payment of a specific sum on or before June 1 and December 1 of each year thereafter until the entire arrearage in child support and interest was paid in full. It is from these orders that defendant appeals.
Plaintiff contends that the present appeal was not perfected in a timely manner and should be dismissed. The notices of appeal were timely filed following the issuance of the trial court’s orders. We have jurisdiction of the appeal. The order for transcript was not filed within ten days of the filing of the notice of appeal as is required by Supreme Court Rule 3.03 (235 Kan. lxiii), nor was the brief served and filed within the time fixed by Supreme Court Rule 6.01 (235 Kan. lxviii). That matter was called to the attention of the Court of Appeals, and it issued an order to show cause to which the defendant responded. He then filed his brief within the time fixed by the court. The defendant’s failure to comply strictly with the rules of appellate procedure is not jurisdictional and under the circumstances does not bar the appeal. We proceed to consider it on the merits.
The primary issue raised by the defendant is whether contempt proceedings may be used to enforce past-due child support arrearages after the children have reached majority. The discussion and the cases cited in 27R C.J.S., Divorce § 321(6), 24 Am. Jur. 2d, Divorce and Separation § 1063, and the annotation in 32 A.L.R.3d 888, indicate that there is an almost even split of authority. Some courts hold that jurisdiction is lost to enforce support by contempt proceedings after the child attains majority; other courts hold that the arrearages may be enforced by contempt proceedings after majority. According to the A.L.R. annotation, as supplemented by the 1985 pocket parts, seven states do not allow post-majority use of contempt, eight states do allow it, and the courts of appeal of another state have gone both ways. The statutes of the various states differ and it would not clarify this opinion to quote from the opinions of our sister states. The cases are cited in the annotation on the subject.
Our divorce statutes have long contained statutory authority for trial courts to order child support during the minority of children. See K.S.A. 1985 Supp. 60-1610(a) and the many predecessor statutes. Court orders for child support are enforceable by proceedings in indirect contempt. See Johnson v. Johnson, 148 Kan. 682, 685-86, 84 P.2d 888 (1938); Barton v. Barton, 99 Kan. 727, 163 Pac. 179 (1917); In re Groves, 83 Kan. 238, 109 Pac. 1087 (1910); and K.S.A. 20-1204a.
There is nothing in our divorce code or in our contempt statutes indicating that the contempt power of a district court to enforce its support orders terminates upon the child’s reaching majority. We note that support for a former spouse may be enforced by contempt proceedings, and in that instance majority is not a factor. Throughout our history, support for children has been a major consideration in domestic relations cases.
Our legislature in 1985 enacted a fifty-page bill relating to the enforcement of support obligations, L. 1985, ch. 115. That act provides for the enforcement of support obligations through civil and criminal proceedings, as well as through contempt, and adds income withholding and the establishment of liens as further methods of enforcement. Nothing in that act indicates that past-due installments of child support may not be collected by contempt proceedings after the child reaches majority. We hold that our trial courts do not lose jurisdiction to enforce child support orders by contempt upon the majority of the child. The trial court did not err in using its contempt powers in this case.
Defendant next contends that acceptance by the plaintiff of one or more support checks containing the statement “paid in full” constitutes an accord and satisfaction. We find this argument unconvincing. Accord and satisfaction has application only where there is an unliquidated or disputed claim. Amino Brothers Co., Inc. v. Twin Caney Watershed District, 206 Kan. 68, 72, 476 P.2d 228 (1970). Here, the debt was liquidated and undisputed and cannot be the subject of an accord and satisfaction. Further, the simple endorsing of a check “paid in full” by the person writing the check — in this case, defendant’s present wife, Virginia — cannot supersede or change a court order for the payment of fixed periodic sums of child support.
Defendant also contends that the trial court erred in its computation in the amount of child support due, and in the amount of accrued interest. We have reviewed the trial court’s computation of the principal amount due and find it correct. Both parties agree that the trial court used the wrong interest rate for some years, and that the interest should be recalculated at the statutory rate.
The judgment of the trial court is affirmed, excepting that portion of the judgment stating the interest due. The case is remanded to the trial court for the recomputation of interest. | [
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The opinion of the court was delivered by
Herd, J.:
Appellant, Terle Slansky, appeals his jury convictions of rape, K.S.A. 1985 Supp. 21-3502; aggravated burglary, K.S.A. 21-3716; attempted rape, K.S.A. 1985 Supp. 21-3301, K.S.A. 1985 Supp. 21-3502; and aggravated assault, K.S.A. 21-3410.
Slansky’s convictions stem from two different incidents. The first incident, resulting in charges of attempted rape and aggravated assault, occurred in the early morning hours of July 8, 1984. The victims, Ms. P and Ms. S, had been to a party where they each had several beers. They left the party about 12:30 a.m., with Ms. P driving and Ms. S asleep in the back seat.
As they were driving towards home (Logan) on highway 183, another car came up beside their car but did not pass. The other car then pulled back behind the car driven by Ms. P and repeatedly bumped her back bumper. Responding to the threat, Ms. P finally stopped her car and the other car pulled up alongside. The man in the other car got out of his car, ran toward Ms. P, grabbed her by the arm and said, “I want your tits.” Her attacker then grabbed at her blouse and ran his hands between her legs on the inside of her thighs.
Ms. P began screaming, trying to get Ms. S to wake up. When Ms. S woke up, the attacker was trying to pull Ms. P out of the car and was telling her, “You’re going to come with me or I’ll kill you.” Ms. S then began yelling, telling the man to leave Ms. P alone. When Ms. P finally kicked free, their attacker then opened the back door of the car and tried to drag Ms. S out of the car by her ankles. The man told her, “You’re coming with me,” but Ms. S was also able to kick free. Ms. P then drove straight home and told her parents what had happened.
The second incident, resulting in charges of rape and aggravated burglary, occurred two weeks later at approximately 2:00 a.m. on July 21, 1984. The victim, Ms. G, was lying in bed watching television when a sheet was thrown over her head and she was shoved on her stomach. Her attacker then rolled her over on her back and shoved a pillow into her face. He also took a sharp blade and shaved some hair from her arm, after which he placed the blade at her throat and said, “Shut up or I’ll kill you.” A lengthy struggle ensued, and the victim was finally thrown to the floor and raped by her assailant. The man then demanded she perform oral sex on him. When she refused, he beat her across the face and the side of her head and raped her a second time. Following these acts, the attacker sat on top of Ms. G, ejaculated all over her and then took his hand and rubbed the fluid all over her face and hair. He then searched through her purse and wallet. He took nothing but told her if she went to the police he’d kill her. He then pulled her to the bathroom, where she began vomiting. The attacker left through the back door.
Other facts will be discussed where relevant.
The appellant was charged with rape and aggravated burglary in connection with the incident involving Ms. G and with attempted rape and aggravated assault in connection with the incidents involving Ms. P and Ms. S. The appellant was also charged with two counts of aggravated kidnapping, but these charges were later dismissed.
Trial was held January 15-17, 1985, and Slansky was convicted of attempted rape and aggravated assault. The jury was unable to agree on a verdict on the charges of rape and aggravated burglary and a mistrial was declared. After a second trial, the appellant was convicted on both remaining charges.
The court sentenced Slansky as follows: fifteen to twenty years for rape, five to ten years for aggravated burglary, five to ten years for attempted rape and three to five years for aggravated assault, with sentences to run concurrently.
Appellant first argues the district court lacked jurisdiction to convict him of aggravated assault because the information did not allege every essential element of the crime and therefore was fatally defective.
The elements of assault, the basis of aggravated assault, are set forth in K.S.A. 21-3408:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” (Emphasis added.)
Count Four of the information states:
“That on or about the 8th day of July, 1984, the said Terle Slansky, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas, unlawfully, feloniously, willfully, and intentionally threaten to do bodily harm to another, to-wit: [L. K. S.], with the intent to commit a felony, to wit: Kidnapping, and which resulted in the immediate apprehension of bodily harm to the person of said [L. K. S.], contrary to K.S.A. 21-3410(c), Class D Felony, Penalty Sections K.S.A. 1984 Supp. 21-4501(d) and K.S.A. 1983 Supp. 21-4503(l)(b).”
The information did not allege Slansky had the apparent ability to do bodily harm and therefore did not allege every essential element of the crime.
In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985). A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. State v. Robinson, Lloyd & Clark, 229 Kan. 301, 304, 624 P.2d 964 (1981). If the facts alleged in an indictment do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979).
The State, in its brief, concedes that the information in this case was defective as to the aggravated assault charge. Accordingly, the appellant’s conviction for aggravated assault is reversed. No remand is required, however, because the sentence for aggravated assault is not controlling.
The appellant next contends the trial court erred in failing to modify his fifteen-year minimum sentence. Specifically, he suggests the trial judge based his sentencing decision on incorrect information. At the hearing on appellant’s motion for modification, the trial judge made the following statements:
“The Court: Mr. Holliday, I am quite aware of how the state’s minimum time works and their good time credit. With a fifteen year minimum controlling sentence, and assuming that Mr. Slansky gets all of his good-time credit, he is only going to serve eight years. If I reduce it to a five-year controlling minimum sentence then he would only serve about two years.”
According to administrative regulations in effect at the time of sentencing and the commission of the crime, a fifteen-year minimum sentence requires an inmate to serve at least 10 years, 7 months and 15 days. A five-year minimum sentence requires an inmate to serve at least three years, six months and twenty-two days. K.A.R. 44-6-117. Thus, the trial judge’s statements regarding good time credit and the minimum time to be served were not completely correct.
However, this does not mean the court abused its discretion in sentencing the appellant. We have held a sentence imposed by a trial court will not be disturbed on appeal on the ground it is excessive provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and is not the result of partiality, prejudice, oppression or corrupt motive. State v. Cunningham,, 236 Kan. 842, 846, 695 P.2d 1280 (1985).
Here, the sentence imposed by the trial court was clearly within the limits prescribed by law and there is no evidence the sentence was the result of partiality, prejudice, oppression or corrupt motive. Moreover, in denying appellant’s motion for modification for sentence, the trial court made the following statement:
“Now, I think what happened to [Ms. G] was violent and sick and terrible and I can only conclude because the jury so concluded, that your client was responsible for that. He needs more time in prison than two to three years which he would get if there were a five-year controlling sentence.”
One of the factors to be considered by the trial court in fixing minimum terms of imprisonment is the extent of harm caused by the defendant’s criminal conduct. K.S.A. 21-4606(2)(b). The trial court was justified in placing emphasis upon this factor in sentencing the appellant. We find no abuse of discretion. This argument is without merit.
Appellant next argues the trial court erred in not suppressing the in-court identifications of the appellant by Ms. P and Ms. S because the identifications were irreparably tainted by a suggestive lineup. Appellant does not claim the in-court identification by Ms. G was tainted.
Although no photograph of the lineup was taken, appellant argues the lineup was impermissibly suggestive because five of the seven men did not look anything like the man the victims described to the officers. At a hearing on the motion to suppress, Officer Connie Drotts, who selected the seven men for the lineup, gave an individual description of all seven men in the lineup. At trial, she testified that all seven individuals fit within the following description: white male, 200-270 pounds, light brown to medium brown hair, age 19 to 30 and dressed casually. Rooks County Sheriff Ronald Stithem also gave an individual description of each man in the lineup as well as a categorical description. Stithem’s testimony corroborated Officer Drotts’ testimony.
As support for his argument the lineup was impermissibly suggestive, appellant relies upon the testimony of Ms. P and Ms. S that only two men in the lineup looked like the man they described to investigating officers. Ms. S also testified that she was acquainted with one of the men in the lineup.
The trial court found nothing in the lineup procedure impermissibly suggestive and overruled the motion to suppress the in-court identification.
We have held that a reliable in-court identification may be capable of standing on its own despite a previously deficient pretrial confrontation. State v. Mitchell, 234 Kan. 185, 187, 672 P.2d 1 (1983); State v. Marks, 231 Kan. 645, 649, 647 P.2d 1292 (1982). The factors to be applied in determining the reliability of the courtroom identification are: (1) the opportunity of the witness to view the accused at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior de scription of the accused, (4) the level of certainty displayed by the witness at the confrontation, and (5) the length of time between the crime and confrontation. State v. Ponds, 227 Kan. 627, 630, 608 P.2d 946 (1980).
Ms. P identified the appellant at both the preliminary hearing and trial. At trial, she testified she was able to clearly observe the face of the appellant because the inside car light was on as well as the car headlights and her attacker’s face was only an arm’s length away from her own. This in-court identification occurred some six months after the incident occurred.
Ms. S also identified the appellant at trial. She had an opportunity to observe her attacker at close range when he opened the back door and tiled to drag her out of the car by her ankles.
Under these circumstances, the in-court identifications by Ms. P and Ms. S stand on their own despite criticism of the lineup identification. This issue is without merit.
The final issue is whether the appellant’s due process rights were violated by the prosecutor’s refusal to allow defense counsel’s request for a photograph of the lineup.
Prior to the lineup, the appellant’s attorney requested that a photograph of the lineup be taken so that the appearance of the panel on that date would be preserved for trial. His request was denied. The trial court, in ruling on the motion to suppress the lineup, noted that a picture of the lineup should have been taken. However, he pointed out that if defense counsel felt such a photo was critical to the preservation of testimony, he could easily have contacted a district judge and obtained an order mandating that a photo be taken. While it is clearly better practice to take photographs of lineups, there is no authority for appellant’s contention that he had a constitutional right to have the lineup photographed. We have held that the right to counsel does not attach to post-arrest, pre-indictment lineup or photographic display situations. State v. McCollum, 211 Kan. 631, 638, 507 P.2d 196 (1973). Adversarial judicial criminal proceedings must have been initiated before the United States Constitution Sixth Amendment right to counsel attaches. State v. Bristor, 236 Kan. 313, 320, 691 P.2d 1 (1984). Thus, where the appellant did not have a right to counsel at the line-up, it is certain he did not have a constitutional right to photograph the lineup. What is more, the jury had ample evi dence before it from which to determine whether the lineup identification was properly conducted. Rooks County Sheriff Ronald Stithem and Deputy Sheriff Connie Drotts both testified regarding the descriptions of the individuals in the lineup and the manner in which it was conducted. The same type of testimony was give by the victims of the crimes, Ms. P, Ms. S and Ms. G. The appellant’s due process rights were not violated by the failure to require a photograph of the lineup.
The judgment of the trial court is reversed in part and affirmed in part. | [
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The opinion of the court was delivered by
Miller, J.:
Defendant David Jackson appeals from his conviction by jury trial in Linn County of two counts of indecent liberties with a child, K.S.A. 1984 Supp. 21-3503, and one count of aggravated criminal sodomy, K.S.A. 1985 Supp. 21-3506. As issues on appeal, defendant contends that the trial court lacked jurisdiction to convict him of the indecent liberties counts because the information was fatally defective in not alleging every essential element of those crimes. He also contends that the court erred in allowing two social workers to testify that, in their opinions, the child victim was telling the truth and had been sexually abused by the defendant; that the court erred in allowing the State to proceed to trial on the information which charged that the offenses occurred between September 1, 1983, and August 6, 1984, primarily for the reason that one of the crimes charged was not a statutory offense during that entire period of time; and, finally, that the court erred in denying his motion for amendment of judgment and erred in allowing him to be convicted of aggravated criminal sodomy, a class B felony, which had elements identical to the offense of indecent liberties with a child, a class C felony under the then-applicable statute, as he could be convicted only of the lesser offense.
We first consider the charges contained in counts Nos. 1 and 2 of the amended information upon which the case went to trial. Count No. 1 purports to charge the offense of indecent liberties with a child, based on alleged acts of sodomy. Count No. 2 purports to charge indecent liberties with a child, based on alleged acts of lewd fondling and touching of the person of the child.
Count No. 1 purports to charge indecent liberties with a child under K.S.A. 1984 Supp. 21-3503(l)(b). That statute, which became effective July 1, 1984, only thirty-six days before the expiration of the time period alleged, defines indecent liberties with a child in part as follows:
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
“(b) sodomy . . . .”
Under that statute, one of the elements of the offense is that the victim be under sixteen years of age. Count No. 1 names the victim but does not allege or charge that she was under sixteen years of age. An essential element of the offense is thus omitted from the information.
Count No. 2 of the information attempted to charge the offense of indecent liberties with a child under K.S.A. 1983 Supp. 21-3503(l)(b) or K.S.A. 1984 Supp. 21-3503(l)(c). Both statutes make it an offense to engage in the lewd fondling of the person of a child who is not married to the offender and who is under sixteen years of age, with certain specified intent. Under both statutes, two of the essential elements of the offense are (1) that the child is not married to the accused, and (2) that the child is under sixteen years of age. Neither element was alleged in count No. 2.
In State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985), we said:
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. See K.S.A. 22-3208(3); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966). Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749,763-64,8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge. However, if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective. State v. Robinson, Lloyd & Clark, 229 Kan. 301; State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978).”
The State points out that the evidence at trial clearly showed that the victim was not married to the defendant and the victim was under sixteen years of age, and argues that this corrects any omission in the information. However, in State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979), we stated our rule in Syl. ¶ 2 as follows:
“If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged and the jury instruction thereon have no bearing on this question.” (Emphasis supplied.)
The State makes several other arguments as to why the information was not fatally defective. First, the State directs our attention to K.S.A. 1985 Supp. 22-3201, which provides that allegations made in one count may be incorporated by reference in another count, and also provides that the information “shall state for each count the official or customary citation of the statute . . . which the defendant is alleged to have violated.” Counts Nos. 1 and 2 of the information did not attempt to incorporate other allegations by reference. We find no language of that nature in either count. The State argues that the statutory citations included in counts Nos. 1 and 2 should be sufficient to supply all of the elements of the offenses charged in each of the counts. We do not agree. Our cases have long held that the essential elements of a crime must be set forth in the information. Reference to the statute is not sufficient; following the State’s argument, an information could simply charge that a named defendant violated a cited statute. Additionally, and though we do not consider it controlling of our decision on this issue, we note that the statutory citations of the sections violated, given in both counts Nos. 1 and 2 of the information, are incorrect. The citations given refer only to penalty sections of the statute, not to the substantive sections setting forth the crime of indecent liberties which each count attempts to charge. As Jus tice (now Chief Justice) Schroeder said for a unanimous court in State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966):
“In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. Where an information, as here, fails to allege an essential element of manslaughter in the first degree, it cannot be cured by the court or the parties proceeding to trial as if the information did charge manslaughter in the first degree, and a judgment of conviction for manslaughter in the first degree based upon an information which does not charge such offense is void for lack of jurisdiction of the subject matter.”
In that case, as in this, the information did not follow the statutory language defining the offense, but omitted an essential element of the offense. We had no hesitancy in setting aside, vacating and reversing the conviction. Here, since counts Nos. 1 and 2 of .the information did not follow the statutory language and omitted essential elements of the crimes they attempted to charge, the information was jurisdictionally and fatally defective, and the conviction for those offenses must be reversed.
We turn now to the second issue, whether the trial court erred in allowing two social workers to testify before the jury that, in their opinions, the child victim was telling the truth and had been sexually abused by the defendant. We are not concerned here with the testimony before the trial court in the K.S.A. 1985 Supp. 60-460(dd) hearing, out of the presence of the jury, but with the testimony given by these witnesses later in the presence of the jury. As background to a discussion of this issue, we note that K.S.A. 1985 Supp. 60-460(dd) states an exception to the hearsay rule. It provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(dd) ... In a criminal proceeding ... a statement made by a child, to prove the crime ... if:
“(1) The child is alleged to be a victim of the crime . . . and
“(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.
“If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor.”
We first considered that statute and discussed it at length in State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985). We said:
“First, the trial judge must hold a hearing to determine whether the child is disqualified or unavailable as a witness. See K.S.A. 60-417. A child is considered to be unavailable for constitutional purposes if the trial court determines that the child is incompetent to testify. Lancaster v. People, 200 Colo. 448, 453, 615 P.2d 720 (1980).
“If the trial judge finds the child is ‘unavailable,’ he must determine if the statement is ‘apparently reliable’ and ‘the child was not induced, to make the statement falsely by use of threats or promises.’ See K.S.A. 60-460(dd). It is apparent to this court the legislature intended to incorporate the Roberts [Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)] standard for admissibility into this statute. Through the use of the words ‘apparently reliable’ it is implicit that the judge must find the evidence contains ‘particularized guarantees of trustworthiness’ since the new statute is not a ‘firmly rooted hearsay exception.’
“The determination of reliability and trustworthiness must be made on a case-by-case basis. Such factors as the age of the child; his or her physical and mental condition; the circumstances of the alleged event; the language used by the child; the presence of corroborative physical evidence; the relationship of the accused to the child; the child’s family, school, and peer relationships; any motive to falsify or distort the event; and the reliability of the testifying witness can be examined.” 237 Kan. at 24-25.
The trial court held a 60-460(dd) hearing outside the presence of the jury concerning the admissibility of statements made by the six-year-old victim to two child abuse investigators. The court found that because of her age and condition, the child was unavailable as a witness and the court found that the statements made by the child were apparently reliable under the Roberts standards, and that the child was not induced to make the statements falsely by use of threats or promises. The court then admitted the child’s statements under 60-460(dd).
The investigators, both of whom testified at the trial, were Virginia Butler, a social services supervisor for the Osawatomie area Social and Rehabilitation Services, and Diane Zuch, a chief social worker at the Rainbow mental health facility. Both witnesses had extensive specialized training and experience in the field of child abuse investigation, and the trial court permitted both of them to testify as experts in that field. In addition to testifying as to the interviews with the victim and statements made by her, the witnesses were each permitted to testify, over objection, and before the jury, that in her opinion the victim was telling the truth, and that in her opinion the victim was sexually abused by the defendant, David Jackson. It is this opinion testimony of these experts which defendant contends constituted error. He is not complaining here about the statements made by the child which were received under 60-460(dd). Defendant does not challenge the qualifications of these witnesses nor does he challenge the court’s finding that they were experts in the field.
Defendant argues simply that it was improper for the court to permit the witnesses to give to the jury the opinion testimony stated above. He cites two cases in support of his argument. The first of these is State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985), where we said:
“[Ujnder K.S.A. 60-456, the opinion testimony of experts on the ultimate issue or issues is not admissible without limitations. Such testimony is admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of lay jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.” 237 Kan. at 385.
The second is State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984). In Bressman, the State called as a witness the physician who had examined the alleged rape victim in the emergency room. The doctor had examined thirty to fifty persons who had complained that they had been raped. The doctor was asked on direct examination if, based on her medical education, treatment of prior rape victims, and her observation and examination of the victim, she could give an opinion as to whether the victim had been raped. Over objection by the defendant, the doctor was permitted to testify that she believed the victim had been raped. We held that the admission of this expert testimony was prejudicial error and for that reason we reversed the conviction. Quoting from Smith v. Estate of Hall, 215 Kan. 262, 524 P.2d 684 (1974), we said:
“An expert’s opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.” 236 Kan. at 303.
The Bressman case is somewhat distinguishable in that the physician in the Bressman case did not have psychiatric training and we found a lack of foundation to qualify the expert to give an opinion that the victim had been raped. Also, in both Lash and Bressman, the victims testified.
The experts here testified in effect that each had special training in communication with children and that it is part of their job to determine whether or not a child is telling the truth. Each witness testified as to the methods used and the things they look for in determining the child’s credibility. Nevertheless, we think it was error for the trial court to permit the witnesses to testify and tell the jury that in their opinions the child was telling the truth and in their opinions the defendant committed the acts of molestation with which he was charged.
The final paragraph of K.S.A. 1985 Supp. 60-460(dd) specifically provides that the weight and credit to be given to the statement is for the jury to determine, and the statute specifies various things which the jury shall consider. The trial court is required to instruct the jury pursuant to that statute. Additionally, in Myatt, we listed factors which the jury might well consider. Here, the witnesses attempted to serve as human lie detectors for the child and both told the jury that in their professional opinions the child was truthful and the defendant was guilty as charged. We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements. K.S.A. 1985 Supp. 60-460(dd) provides a substantial exception to the hearsay rule in child molestation cases. We are not prepared to enlarge that exception, or to enlarge the scope of permissible expert testimony, in order to leave the determination of the truthfulness of the victim of a crime up to the judgment of expert witnesses. It must be determined by the jury. For the reasons stated, we conclude that the admission of this expert testimony was prejudicial and reversible error. This error requires the reversal of defendant’s conviction on the remaining charge, aggravated criminal sodomy, contained in count No. 3.
Defendant complains that all three of the counts on which he was tried alleged that the crime was committed between September 1, 1983, and August 6, 1984, and he argues that he was prejudiced by not being provided with a more specific time of the offenses. As we observed in State v. Myatt, 237 Kan. at 28-29:
“The State need not prove the precise time a crime occurred unless it is an essential element of the offense. The time of the offense is not an essential element of indecent liberties with a child. State v. Sisson, 217 Kan. 475, 536 P.2d 1369 (1975); State v. Wonser, 217 Kan. 406, 407, 537 P.2d 197 (1975); State v. Kilpatrick, 2 Kan. App. 2d 349, 578 P.2d 1147 (1978); K.S.A. 21-3503. As this court noted in Sisson, 217 Kan. at 478:
“ ‘Where a prosecution is not commenced promptly after the alleged commission of an offense or the event is not otherwise brought to public notice it is not unusual for uncertainty as to dates to appear particularly when the memories of children are involved.’ ”
In the instant case, however, we do have one unusual circumstance: The offense of indecent liberties with a child by engaging in an act of sodomy with the child became an offense on July 1, 1984. K.S.A. 1984 Supp. 21-3503 included sodomy as an alternative element of indecent liberties with a child only after July 1, and thus that statute was applicable only for a period of thirty-seven days of the times here charged, or between July 1 and August 6, 1984. Count No. 1 of the information charged Jackson with the commission of indecent liberties by sodomy during an extensive time period (September 1, 1983, to June 30, 1984) before the statute became effective. In this state, all crimes are established by legislative act. There are no common-law crimes in Kansas, and there can , be no conviction except for crimes defined by statute. State v. Sexton, 232 Kan. 539, 542-43, 657 P.2d 43 (1983); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966); Lawton v. Hand, 186 Kan. 385, 387, 350 P.2d 28 (1960); State v. Gloyd, 148 Kan. 706, 709, 84 P.2d 966 (1938); State, ex rel., v. Basham, 146 Kan. 181, 186, 70 P.2d 24 (1937); State v. Koontz, 124 Kan. 216, 218, 257 Pac. 944 (1927); State v. Young, 55 Kan. 349, 356, 40 Pac. 659 (1895). One cannot be convicted of a criminal offense under a statute not yet enacted and effective. This is an additional reason why defendant’s conviction under count No. 1 of the information cannot stand.
Aggravated criminal sodomy, a crime defined by K.S.A. 1985 Supp. 21-3506, was an offense during the entire time period here charged. That offense has identical elements as does the offense of indecent liberties with a child by committing an act of sodomy upon the child as that offense is defined by K.S.A. 1984 Supp. 21-3503 (l)(b). Defendant argues that since the elements of the two offenses are identical, he could be convicted of only the lesser of the two offenses. This argument, however, does not take into consideration the effective date of the latter statute. If the act of sodomy with a child occurred prior to July 1,1984, the offense committed would be aggravated criminal sodomy; if, under the evidence, the jury were to conclude that the act occurred on or after July 1 and on or prior to August 6, 1984, the offense committed would be that of indecent liberties with a child. If the jury finds that the act occurred during the alleged time period, and if the jury is uncertain as to whether the act was committed before or after the effective date of K.S.A. 1984 Supp. 21-3503, then defendant can be convicted of the lesser offense only. These issues may be clarified in the court’s jury instructions upon retrial.
The judgment is reversed and the case is remanded for a new trial. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is an action to foreclose a security interest in personal property. The district court granted summary judgment in favor of the plaintiff-appellee, Peoples National Bank of Liberal (Bank). Defendant, Donald D. Molz, appeals.
Mr. Molz represented himself throughout the trial court proceedings and is pro se on appeal.
Appellant executed a promissory note in favor of the Bank on August 16,1983, in the principal amount of $5,310.04, payable in monthly installments. Pursuant to the terms of the note, appellant granted the Bank a security interest in an automobile and two motorcycles (auto loan). Appellant executed a second note in favor of the Bank on September 8, 1983, in the amount of $4,991.20 and payable in monthly installments. Pursuant to the terms of this note, appellant granted the Bank a purchase money security interest in a mobile home (mobile home loan).
Appellant defaulted on both notes, and the Bank filed this action seeking foreclosure of its security interest in appellant’s personal property. Appellant filed a document entitled “Counter Petition” alleging violations of the federal Truth in Lending Act and the Real Estate Settlement Procedures Act.
Both parties filed motions for summary judgment. Summary judgment was granted in favor of the Bank and this appeal by Molz followed.
Appellant first contends the Bank failed to provide him with a notice of right to rescission and cites 12 C.F.R. § 226.15 (1986) as authority for his contention. However, as appellee points out, that regulation is inapplicable here as it refers to the right of rescission under open end credit. The proper citation is to 12 C.F.R. § 226.23 (1986), which is codified at 15 U.S.C. § 1635 (1982).
15 U.S.C. § 1635(a) provides as follows:
“Except as otherwise provided in this section, in the case of any consumer credit transaction (including opening or increasing the credit limit for an open end credit plan) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, appropriate forms for the obligor to exercise his right to rescind any transaction subject to this section.” (Emphasis added.)
Subparagraph (e)(1)(A) of the same statute provides that this section does not apply to “a residential mortgage transaction as defined in section 1602(w) of this title . ...” A residential mortgage transaction is defined as a transaction in which a mortgage or purchase money security interest or equivalent consensual security interest is created or retained in the consumer’s principal dwelling to finance the acquisition or principal construction of that dwelling. 15 U.S.C. § 1602(w) (1982). Dwelling includes a mobile home. 12 C.F.R. § 226.2(a)(19) (1986). Since the appellant created a purchase money security interest in favor of the bank in order to finance the acquisition of his mobile home, the mobile home loan was exempt from the right of rescission notice requirements of 15 U.S.C. § 1635 and appellant’s claim is without merit. Further, the Bank was not required to provide notice of the right to rescind on the automobile loan. The notice requirements apply only to those transactions involving the retaining or acquiring of a security interest in property which is used as the “principal dwelling.” The property taken as security for the automobile loan does not qualify. This argument is without merit.
Appellant also argues the Bank failed to disclose the “total sales price” as required under 12 C.F.R. § 226.18(j) (1986). This issue is raised for the first time on appeal. A point not raised before or presented to the trial court may not be raised for the first time on appeal. Goben v. Barry, 237 Kan. 822, 825-26, 703 P.2d 1378 (1985).
While this issue was not properly raised before the trial court, we will comment on its merits. Total sales price is required to be disclosed under 12 C.F.R. § 226.18 in a credit sale. In the present case, the Bank clearly did not sell the collateral to the appellant. The Bank simply loaned the appellant money and took a security interest in the collateral. This issue is without merit.
Appellant next alleges the trial court erred in finding that the provisions of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq. (1982), were not applicable to the case at bar. RESPA applies only to those loans which are “federally related mortgage loans” as that term is defined at 12 U.S.C. § 2602(1) (1982). Among other requirements, a federally related mortgage loan must be secured by a “first lien on residential real property.” 12 U.S.C. § 2602(1)(A). The act has no application to personal property transactions and loans. Therefore, since the two loans which are the subject of this appeal involve only security interests in personal property, RESPA is not applicable. The trial court did not err in so holding.
Appellee argues it should be awarded attorney fees and expenses incurred on appeal as authorized by Supreme Court Rule 7.07 (235 Kan. lxxv) because the appeal was taken frivolously and for the purpose of delay. The Bank points out that appellant has consistently raised arguments and issues which have no basis in fact or law. This is true since appellant’s arguments concerning alleged violations of the TILA and RESPA are completely without merit. We defined a frivolous appeal in Blank v. Chawla, 234 Kan. 975, 982, 678 P.2d 162 (1984), as one in which no justifiable question has been presented and the appeal is readily recognized as devoid of merit in that there is little prospect that it can ever succeed. This case fits that definition. Accordingly, we award appellee judgment against appellant in the amount of five hundred fifty dollars ($550.00) for attorney fees and the costs of printing briefs.
The judgment of the trial court is affirmed and remanded with instructions to enter judgment in accordance with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a hydra-headed action by the owners of property operated as a rock quarry wherein they challenge, on various grounds, the taking of their property by eminent domain, seek compensation for rock removed from the property on the theory of inverse condemnation, and request damages for violation of their civil rights pursuant to 42 U.S.C. § 1983 (1982). The district court held the petition failed to state any claims upon which relief could be granted and dismissed the action. Plaintiffs appeal from said dismissal.
The plaintiffs owned approximately fourteen acres of land in Bonner Springs on which they operated a rock quarry and stored construction machinery and equipment. On July 22, 1982, defendant City filed an eminent domain proceeding to acquire plaintiffs’ property in fee simple for “controlled access highway right of way including sewer and utility purposes and appurtenances and removal of borrow material.” The court-appointed appraisers, who filed their report on September 22, 1982, set forth an award of $175,000.00. On October 22, 1982, plaintiffs appealed from the award.
On December 7, 1983, plaintiffs filed this action seeking the varieties of relief previously set forth. The district court held that the petition failed to state a cause of action, finding specifically:
(1) the challenges to the taking could only be determined in the appeal from the award;
(2) all issues relative to compensation would be determined in the upcoming trial of appeal from the award; and
(3) the petition failed to state a cause of action pursuant to 42 U.S.C. § 1983 (1982).
We turn now to a discussion of the issues.
CHALLENGES TO THE TAKING
The district court held that challenges to the taking could only be determined in the pending appeal from the award. This was error. As noted in In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, 683 P.2d 1247 (1984):
“A condemnation proceeding instituted under K.S.A. 26-501 et seq. is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.” Syl. ¶ 1.
“The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking can only be litigated in an individual civil action, usually by suit for injunction.” Syl. ¶ 2.
Plaintiffs challenge the taking of fee simple title to the real estate. They contend K.S.A. 26-201 limits the taking to a permanent easement. The statute provides in pertinent part:
“A city shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto: Provided, Cities shall not have the right to acquire a fee simple title to property condemned solely for street purposes. Whenever it shall be deemed necessary by the governing body of any city to appropriate private property for the use of the city for any purpose whatsoever, the governing body shall by resolution declare such necessity and authorize a survey and description of the land or interest to be condemned to be made by some competent engineer and filed with the city clerk.”
Plaintiffs contend the taking was solely for street purposes and hence K.S.A. 26-201 permits the taking only of a permanent easement. We do not agree. The petition in the eminent domain proceeding clearly states the property is being taken in fee simple title “for controlled access highway right of way including sewer and utility purposes and appurtenances and removal of borrow material.” Clearly this was a taking for more than street purposes even if, as it is argued, the term “controlled access highway” is within the definition of “street” set forth in K.S.A. 12-6a01(g). We conclude taking fee simple title to the property was not unlawful.
Next, plaintiffs argue that the defendant City only required eleven acres of the tract for its purposes and the taking of the entire fourteen-acre tract was therefore unlawful. We do not agree. Originally, the City contemplated taking only eleven acres, leaving three acres with access to the planned controlled access highway. When the final construction plans were approved, the three-acre portion of the tract was left without access to the highway. The City then determined it was appropriate to take the entire tract. The grantee of the power of eminent domain is vested with reasonable discretion in determining the amount of land necessary to accomplish its lawful purposes, and the grantee’s exercise of discretion cannot be overturned in a judicial proceeding absent a showing of fraud, bad faith, or abuse of discretion. See Shelor v. Western Power & Gas Co., 202 Kan. 428, 449 P.2d 591 (1969). Ordinarily a challenge to the reasonableness of the amount of land taken by eminent domain is not a fit subject for dismissal of a claim for failure to state a cause of action. Here, however, the district court in its memorandum decision emphasized the long delay between the taking and the institution of the independent action. This action was filed over sixteen months after the original eminent domain proceeding was commenced and almost fourteen months after plaintiffs had appealed from the appraisers’ award. Construction of the highway project was well underway at the time this action was filed. In fact, it was plaintiffs’ observations of the substantial removal of rock from the tract that prompted the filing of this action. Plaintiffs brought the action asking, inter alia, a court of equity to enjoin the taking of the three acres as being unreasonable. The district court clearly believed plaintiffs had delayed too long in seeking equitable relief in this regard. Although dismissal for failure to state a cause of action may not have been the proper terminology to employ, denial of the requested equitable relief on the basis of laches was appropriate under the circumstances. Plaintiffs knew the condemnor was taking the entire tract in fee simple sixteen months before filing their challenge and waited until construction was well underway before commencing their action. As stated in Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 667 P.2d 879 (1983):
“If the plaintiff stands by and remains passive while the adverse party incurs risks, enters into obligations and makes large expenditures, so that by reason of the change of conditions disadvantage and great loss will result to the adverse party which might have been avoided if the plaintiff had asserted his claim with reasonable promptitude, there are grounds for declining to grant relief. Kirsch v. City of Abilene, 120 Kan. 749, 751-52, 244 Pac. 1054 (1926).” Syl. ¶ 4.
COMPENSATION CLAIMS
Plaintiffs sought an injunction against further rock removal from the tract, an accounting of the rock removed, and compensation for the rock as an element of damage separate from the market value of the land (to be determined in their appeal from the appraisers’ award). They rely on a theory of inverse condemnation which is, in turn, grounded on their assertion the City acquired only a permanent easement rather than fee simple title to the tract and that an easement for “borrow” purposes does not permit the rock to be used for highway purposes except as fill. The rock herein was used, at least in part, for road base and aggregate mix. These claims fall with our prior determination that fee simple title was acquired by the condemnor.
The jury trial on the plaintiff-landowners’ appeal from the appraisers’ award was held shortly after the dismissal of the action herein. The plaintiffs were awarded $323,250 by the jury — $148,250 more than the $175,000 appraisers’ award previously paid in by the condemnor and drawn out by plaintiffs. Any issues relative to the proper measure of damages to be utilized in determining the fair market value of the property taken lie in the appeal from the appraisers’ award. Plaintiff-landowners filed an appeal from the judgment entered therein. That appeal was dismissed voluntarily by the landowners (plaintiffs herein) on September 5, 1984.
We find these compensation claims are without merit.
§ 1983 CIVIL RIGHTS CLAIM
The provision of 42 U.S.C. § 1983 (1982) states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Plaintiffs contend that they have been deprived of their rock under color of state law. They argue that the rock removal for use as aggregate mix and base rock constitutes a form of inverse condemnation. Had the same rock been utilized- as fill for the highway, presumably this would be proper as “borrow” material was a use expressly provided for in the eminent domain proceeding. The logic of this argument is difficult to follow. The defendant City took the property in fee simple title for purposes which included invasion below the surface thereof and removal of material for use in the construction project. The- fair market value of the entire fee has been determined in a jury trial on the landowners’ appeal from the appraisers’ award. Plaintiffs filed an appeal from said jury trial judgment and then voluntarily dismissed the appeal. Clearly, plaintiff-landowners had an adequate remedy at law for determination of compensation for the taking of their property and availed themselves of it. There is, accordingly, no taking of property without payment of just compensation or without having been afforded rights of due process. There is no violation of the only two constitutional rights possibly involved herein, and thus no § 1983 cause of action is stated. See Nika Corp. v. City of Kansas City, Mo., 582 F.Supp. 343 (W.D. Mo. 1983), and Kao v. Red Lion Municipal Authority, 381 F. Supp. 1163 (M.D. Pa. 1974).
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, C.J.:
Charles F. Strauch, the defendant-appellant, was convicted by a Shawnee County, Kansas, jury of premeditated first-degree murder (K.S.A. 21-3401) and aggravated criminal sodomy (K.S.A. 1985 Supp. 21-3506[c]). The defendant raises the following issues on appeal: his confession was improperly admitted into evidence, a mistrial should have been granted due to prosecutorial misconduct, certain expert testimony was inadmissible, his motion for judgment of acquittal on the aggravated criminal sodomy charge should have been granted, instructions on the lesser included offenses of felony murder should have been given, and his sentence was excessive.
On Sunday, October 21, 1984, the body of a partially nude female was found lying face down in a pond southeast of Topeka, Kansas. Various items of clothing were found scattered at the scene of the crime: a pair of black slacks tom in half, a white sweater, bra, earrings, and one shoe. The victim was later identified as Lilly Ledford. The findings of the autopsy performed by Dr. David Borel revealed the victim had received serious skull fractures, chest fractures, and had been stabbed. In addition to an extensive list of other injuries were injuries to the lining of her rectum, which indicated penetration by a foreign object of up to eight and a half inches. Abrasions on the victim’s back indicated she had been dragged on the ground to the pond.
On Sunday, October 21, 1984, the same day the body was discovered, the police talked to Mr. and Mrs. Roger Maack, who lived in the area where the body was found. Mr. and Mrs. Maack were driving home on Saturday, October 20, 1984, at approximately 9:30 p.m. They saw a white Chevrolet pickup, with its lights off, setting on the east side of the road near the location of the pond. When they were about two car lengths away from the pickup, a man jumped out from the trees, crossed the ditch, and opened the hood of the pickup. Mrs. Maack described the man as 5T0"-5T1", weighing 200 pounds, and wearing a tan or wheat-colored jacket and blue jeans. Mr. Maack described the man as partially bald, heavy-set, and wearing a tan coat and blue jeans. At trial, Mr. Maack identified the defendant as the man he saw that night.
On Monday, October 22, 1984, the police had obtained the following information. Teresa Huslce and the victim had gone to the Venetian Club together Saturday night, October 20, 1984. When Ms. Huske left the club, at approximately 6:40 p.m., the victim was talking to Charlie Strauch. A bartender at the Venetian Club, Shirley Calvert-Emery, left the club at approximately 8:30 p.m. the same night. At that time, the victim and the defendant were still there. The victim wanted a ride to Charlie Hall’s but turned down Ms. Calvert-Emery’s offer to take her there. The defendant’s address was listed on his membership card to the Venetian Club. A white pickup was seen in the driveway at that address. Reta Johnson, the defendant’s girl friend, and the defendant lived together at that address. The police talked to Reta Johnson.
The defendant was arrested at approximately 5:30 p.m., as he was getting off work, on Monday, October 22,1984. He was read the Miranda warning at the time of his arrest and again prior to his interrogation. Following the warning, the defendant confessed to the murder of Lilly Ledford. The facts surrounding the defendant’s interrogation at the time of his confession will be discussed later. In his confession, the defendant stated he drove Reta’s truck to the Venetian Club on Saturday. A woman wearing a white sweater and slacks asked him if he was going to Charlie Hall’s, and he said yes. They drove to Charlie Hall’s and no one was there. The defendant turned back toward Topeka, and stated he ran out of gas. The woman was playing with the defendant’s penis, but he said he had been drinking and was impotent. The woman told him he wasn’t a man, but a little boy. They started fighting back and forth in the truck — he grabbed her feet and pulled her out of the truck, tearing off her slacks. The woman had something shiny in her hand and started hitting him. He then hit her with a roofing hatchet. Then the defendant walked up a gravel road, but found it was a dead-end and returned to the truck. There he found the victim was lying under a tree making gurgling sounds. The defendant kicked her and got the roofing hatchet from the truck. During their struggle he remembered kicking her and hitting her several times with the roofing hatchet. He dragged her down to the pond by her feet, on her back, and “flung” her around by the feet into the water. The defendant then walked to a Derby gas station and called Reta. She picked him up at the Derby station and they got home after midnight. Reta washed his clothes — a brown coat, brown corduroys and black T-shirt. The defendant washed the blood off the roofing hatchet. On Sunday, the defendant changed the tires and the bed of the truck. The defendant and Reta disposed of his boots and the roofing hatchet at a dump. They threw his clothes and the victim’s purse from a bridge into a river. The police later recovered those items.
At trial, another bartender at the Venetian Club, Michael J. Kisner, testified he saw the victim and the defendant leave the club together at approximately 9:00 p.m. Loretta Miller, the assistant manager of the Derby station, testified that on October 20, 1984, at approximately 11:00 p.m. a man used the pay phone at the station. He came to the station on foot, was very muddy, and had blood on his face and on the side of his pants. Ms. Miller called the sheriff s department. Officers arrived at the station and talked to the defendant, who cooperated fully. He said his truck ran out of gas and his wife had come to pick him up. The sheriff s deputy saw no blood on the defendant, but the defendant was soaked to the bone. Daniel Bailey testified that Reta Johnson had called him three times on Sunday and wanted him to pick up a spare bed to their pickup. Bailey picked up the spare bed on Monday, and that same day officers came and got it from him. Paul Vinsonhaler, Reta Johnson’s son, testified that on Sunday morning his mother had asked him to take the bed off the truck and change the tires. Paul Crispin, a friend of Vinsonhaler’s, testified that early Sunday morning Reta asked them to take a bag and dump it. He didn’t know what items were in the bag. He testified Vinsonhaler threw the bag from a bridge.
The defendant was charged with premeditated first-degree murder and in the alternative felony murder, with the underlying felony being aggravated criminal sodomy. The defendant was also charged with aggravated criminal sodomy. The jury convicted him of premeditated first-degree murder and aggravated criminal sodomy. The defendant was sentenced to life for the conviction of first-degree murder, and fifteen years to life for the conviction of aggravated criminal sodomy. The sentences are to run consecutively.
The defendant argues the trial court erred in not suppressing his confession. Prior to trial, a hearing was held on defendant’s motion to suppress the confession pursuant to K.S.A. 22-3215. The defendant asserted six specific grounds in his motion: (1) He was not properly advised of the Miranda warnings; (2) the statement was not voluntary but the result of mental duress and threats; (3) the statement was obtained by trick promises and false pretenses; (4) the statement was the fruit of an illegal arrest; (5) the defendant did not voluntarily waive his right to counsel; and (6) the violation of various constitutional rights.
The defendant first challenges the trial court’s ruling the statement was not the fruit of an illegal arrest. The defendant argues that at the hearing on the motion to suppress, the State failed miserably to establish there was sufficient information constituting probable cause to arrest the defendant without a warrant. The State argues that although the evidence presented at the hearing was conclusory in nature, the evidence presented at trial clearly showed what information the police had obtained prior to defendant’s arrest and that information was sufficient to establish probable cause to arrest the defendant without a warrant.
If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony. State v. Clark, 218 Kan. 726, 730-31, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976); K.S.A. 1985 Supp. 22-2401(c)(l). When the admissibility of a confession is in issue, the burden is on the State to establish its admissibility. K.S.A. 22-3215(4).
The issue of probable cause to arrest without a warrant was recently addressed in State v. Peterson, 236 Kan. 821, 826-27, 696 P.2d 387 (1985), as follows:
“Probable cause to arrest without a warrant simply means a knowledge of facts and circumstances sufficient for a prudent person to believe a suspect is committing or has committed an offense. Its existence must be determined by practical considerations of everyday life on which a reasonable person acts and not on the hindsight of legal technicians.
“It is well established that where a law enforcement officer arrests with a warrant the collective information of the police officers and law enforcement officers involved in obtaining the warrant forms the basis for the probable cause for the arrest with the warrant, even though that information is not within the knowledge of the arresting officer. In addition, an officer without a warrant, who has sufficient personal knowledge or collective information from other law enforcement officers to form the basis for probable cause, can request a second officer who has come in contact with the suspect to arrest the suspect under proper circumstances.
“The knowledge of the arresting officer is relevant only where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by the arresting officer. In a cooperative investigation by many law enforcement officers, the knowledge of one officer is the knowledge of all in determining probable cause for an arrest, provided there has been communication between the individual officers.”
Detective Gilchrist testified at the hearing on the defendant’s suppression motion that, at the time of the defendant’s arrest, he had information which constituted probable cause to arrest the defendant for the murder of Lilly Ledford. Detective Gilchrist was never asked to state generally what that information was. While the testimony of Detective Gilchrist was conclusory, Arthur Weiss, assistant district attorney, also testified on the issue of probable cause. He stated the investigators had received information and leads identifying the defendant as the principal suspect, they had a picture of the defendant provided by a witness, they knew to look for a pickup carrying roofing equipment because they also knew the defendant was employed by a roofing company.
In determining whether probable cause to arrest exists, all the information in the officer’s possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt. State v. Curtis, 217 Kan. 717, 723, 538 P.2d 1383 (1975). The State need not produce its entire case in order to establish probable cause. It is not necessary that the evidence giving rise to probable cause be sufficient to prove guilt beyond a reasonable doubt.
Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972). In dealing with probable cause, as the name implies, we are not dealing with technicalities, but with probabilities. Illinois v. Gates, 462 U.S. 213, 241, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, reh. denied 338 U.S. 839 (1949).
We find a prudent person, possessing knowledge of the above information testified to by Arthur Weiss, and drawing reasonable inferences therefrom, could believe the defendant had committed the crime of murder. Furthermore, as the State points out, the evidence presented at trial more specifically identifies what leads and information the police possessed at the time the defendant was arrested.
The defendant cites authority that where a confession is made while the defendant is under illegal arrest, the court must determine whether the statement was voluntary in order to satisfy the Fifth Amendment of the U.S. Constitution, and whether the statement was sufficiently an act of free will to purge the primary taint of the illegal arrest to satisfy the Fourth Amendment of the U.S. Constitution. Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664 (1982); Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975); Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Having determined the defendant’s confession was not the result of an illegal arrest, we need not address this issue.
The defendant contends his confession was obtained through mental duress, threats, tricks, false promises and false pretenses by the police officers. The various improprieties alleged by the defendant include use of the interrogation technique called the “Mutt and Jeff’ or “good guy-bad guy” technique, lies Detective Gilchrist told the defendant about information obtained from the defendant’s girlfriend, the raised voice of Detective Gilchrist during the interrogation, and failure of the police to relieve the defendant’s discomfort caused by the handcuffs when the defendant was being taken to police headquarters after his arrest. The State merely argues there is no evidence to support the defendant’s arguments.
The defendant’s girlfriend, Reta Johnson, arrived at police headquarters for questioning around 5:00 or 5:30 p.m. on Monday, October 22,1984. The same day, the defendant was arrested and arrived at police headquarters for questioning at approximately 6:05 p.m. The defendant was advised of his rights at the time of his arrest and at 6:15 p.m., prior to the interrogation, the defendant waived his rights and agreed to talk. Detective Gilchrist began the questioning by obtaining background information and left the defendant’s interrogation room after fifteen-twenty minutes. Detective Gilchrist then went back and forth between the ongoing interrogations of the defendant and Reta Johnson. At various times, he would tell the defendant what Reta had told the police. Detective Gilchrist admitted he lied to the defendant, telling him he had more information than he really did. Initially, the defendant denied knowing anything about the homicide, saying that he had blacked out. Detective Gilchrist told the defendant he believed he was lying and possibly raised his voice at the defendant. The defendant went to the bathroom several times. At 8:00 p.m., the defendant was again escorted to the bathroom and upon his return, stated he was ready to give a statement. The defendant gave a statement and was then booked into jail at approximately 10:00 p.m. The defendant had worked a full day on October 22, 1984, and did not appear to be under the influence of drugs or alcohol. He was provided food, drinks, and cigarettes during the questioning.
The issue of the voluntariness of confessions was recently addressed in State v. Waugh, 238 Kan. 537, 712 P.2d 1243 (1986), where this court stated:
“The U.S. Constitution, under the Fifth Amendment, guarantees the accused the privilege against self-incrimination from statements that are not freely and voluntarily given or are given under the threat of force or compulsion. Procedural safeguards protect the exercise of the privilege against self-incrimination from the coercive effects of custodial interrogation. Prior to custodial interrogation, law enforcement officers must advise a suspect that he has the right to remain silent, that his statements may be used against him at trial, and that if he cannot afford an attorney one will be appointed to represent him. If the suspect indicates in any manner either prior to or during questioning that he wishes to remain silent, interrogation must cease and may not recommence until the suspect knowingly, intelligently and voluntarily waives his right to silence. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
“K.S.A. 22-3215(4) places the burden of proving that a confession or admission is admissible on the prosecution. In the present case, the trial court, after a hearing, determined Waugh’s confessions were voluntary. When a trial court determines at a hearing that a defendant’s extrajudicial statement was freely, voluntarily and intelligently given and admits the statement into evidence at trial, the appellate court will not reverse such determination if it is supported by substantial competent evidence. State v. Lilley, 231 Kan. 694, Syl. ¶ 6, 647 P.2d 1323 (1982).
“When determining the voluntariness of a confession, one views the totality of the circumstances, including: (1) the duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981).
“Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181 (1974)” 238 Kan. at 540-41.
There, the defendant was charged with first-degree murder. During the interrogation the police encouraged Waugh to tell the truth, but made no positive promise of a benefit. Waugh was also told he was lying. The police went so far as to tell Waugh they wanted to find the body of the victim so he could receive a Christian burial. When a polygraph test taken by the defendant showed he had previously been lying, he admitted he had killed the victim. Waugh was not allowed to see his wife until he showed the police where the body was located. The defendant’s confession was held to be voluntary and not coerced under the totality of the circumstances.
Even if we consider the raised voice of Detective Gilchrist as a threat, in evaluating any threatening or intimidating remarks made by the police, the question is whether the defendant’s will was overborne at the time he confessed. Lynumn v. Illinois, 372 U.S. 528, 534, 9 L. Ed. 2d 922, 83 S. Ct. 917 (1963). There must be a connection between the threat and confession which results in a direct influence on the defendant’s mind. There is no such showing here, nor does Detective Gilchrist’s telling the defendant he didn’t believe him constitute coercion. In State v. Kornstett, 62 Kan. 221, 61 Pac. 805 (1900), a sheriff told the suspect he believed the suspect knew who had committed the murder, and would feel better if he told the truth. There, this court stated, mere advice or an admonition to the defendant to tell the truth, which is neither a threat nor a benefit, does not render a confession inadmissible. See also Sparf and Hansen v. United States, 156 U.S. 51, 39 L. Ed. 343, 15 S. Ct. 273 (1895). Recognizing that coercion can be mental, as well as physical, the lies told by Detective Gilchrist do not render the statement involuntary. In Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), the questioning officer falsely told the defendant that the defendant’s cousin had been brought in and confessed. The court stated that while the misrepresentation made by the police was relevant, it was insufficient to make the otherwise voluntary confession inadmissible. The court stated the case had to be decided by viewing the totality of the circumstances. 394 U.S. at 739.
Here, we cannot say that under the totality of the circumstances the defendant’s confession was involuntary. The defendant was twice advised of his rights and he was provided food and coffee. The evidence fails to show the police purposefully used the “Mutt and Jeff’ technique of interrogation. Detective Gilchrist was going between the two interrogations, leaving Detective Blodgett, who had a mutual understanding with the defendant, as the primary interrogator. The questioning began at approximately 6:30 p.m. At 8:00 p.m., the defendant started giving his statement which was completed around 9:40 p.m. The defendant was not under the influence of any drugs or alcohol. There is no evidence the police made any promises of benefit to the defendant. The confession was voluntary and properly admitted at trial.
The defendant claims he is entitled to a new trial based on prosecutorial misconduct. At trial, the prosecutor asked Arthur Weiss whether, in his professional opinion, probable cause existed to arrest the defendant. The trial court sustained defendant’s objections on the basis of relevancy. After that ruling, the prosecutor continued to pursue the subject.
After the defendant moved for a mistrial, the trial court denied his motion. The defendant did not request the trial court to admonish the jury to disregard the questions and the trial court did not do so on its own. The motion was focused upon irrelevant evidence and a review of the prosecutor’s inquiry forms no basis for a mistrial. See State v. Lewis, 238 Kan. 94, 97-98, 708 P.2d 196 (1985).
Next, the defendant argues the trial court erred in allowing Dr. William Eckert to give his expert opinion on the victim’s injuries. The defendant argues Dr. Eckert based his opinion on hearsay and on the opinions of another expert and, therefore, his opinion was not based on facts made known to him at the hearing as required by K.S.A. 60-456(b)(l).
Before stating his opinion, Dr. Eckert testified his opinion was based on photographs, the videotape taken at the scene of the crime, Dr. Borel’s autopsy report, and a small blade, all provided to him by officers Warrington and Ramirez. A hearing was held outside the presence of the jury, where Dr. Eckert explained what information the two officers gave him. He stated they gave him the facts of the case as he was viewing the videotape, they explained where the body was found, where the road was, and circumstances indicating whether the body had been moved. Dr. Eckert was interested in how the victim and the defendant had met, and what their relationship was. The officers assumed the victim and the defendant were in the area of the pond, and had either had sex or had contemplated having sex. When asked whether he considered that information, Dr. Eckert stated he had seen photographs of the victim’s partially nude body and considered sex to be a factor in the case. However, Dr. Eckert couldn’t actually say whether he took that into consideration.
K.S.A. 60-456(b) reads as follows:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
As a general rule, the qualifications of an expert witness and the admissibility of his testimony are matters to be determined by the trial court in the exercise of its discretion. State v. Brooks, 217 Kan. 485, 487, 536 P.2d 1365 (1975). In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 6, 574 P.2d 136 (1977), we considered the proper basis for an expert’s opinion. There, we stated:
“Where the facts and data are not perceived by or personally known by the witness, they must be supplied to the witness so that he is aware of them at the time he testifies. This may be done by having him attend throughout the trial; but it is certainly much more common, and just as proper, for counsel to provide the witness with the factual background prior to the time he expresses his opinion. The facts made known.to him and upon which his opinion is based should, of course, be in evidence; as we said in Casey v. Phillips Pipeline Co., [199 Kan. 538, 546, 431 P.2d 518 (1967)], ‘made known’ as used in K.S.A. 60-456(b) refers to facts put in evidence. Before stating his opinion, the witness may be examined concerning the data upon which the opinion is founded, if the judge so requires, and upon cross-examination the witness may be required to state the data which he has considered. K.S.A. 60-457, 458.”
Here, the defendant argues Dr. Eckert’s expert opinion is inadmissible because it was based upon information provided to him by the officers, the content of which was not “made known” to Dr. Eckert at trial. However, the defendant’s confession had been admitted into evidence prior to Dr. Eckert’s testimony. The defendant stated the victim told him she was going to perform oral sex on him, but he was impotent. The officers’ “assumption” that the defendant and the victim were thinking of having sex had been put into evidence. There is no indication in the record the two officers gave Dr. Eckert anything but background information while he was viewing the videotape.
Concerning Dr. Borel’s autopsy report, Dr. Eckert testified he took the report apart in order to reorganize it according to parts of the body where injuries were located. Dr. Eckert may have relied on the facts in Dr. Borel’s autopsy report, but there is no indication he relied on Dr. Borel’s opinion. The facts of Dr. Borel’s report, i.e., the particular injuries Dr. Borel discovered during the autopsy, were testified to by Dr. Borel.
It is noteworthy that the opinions of Dr. Borel and Dr. Eckert differed on the instrumentality which caused the injuries to the anal area of the victim. Dr. Eckert testified it was a knife blade while Dr. Borel testified it was the handle of the roofing hatchet or a knife.
Finally, Dr. Eckert was handed photographs of the victim taken at the crime scene and at the autopsy. Some of those photographs had been enlarged and Dr. Eckert stated he remembered the officers providing him with regular-sized photographs. He then stated the enlarged photographs were similar to what he had been given by the officers. All of the photographs Dr. Eckert used in his testimony had been admitted into evidence.
We find the trial court did not abuse its discretion in admitting into evidence Dr. Eckert’s expert testimony.
The defendant raises three issues on appeal related to the charge of aggravated criminal sodomy. The first to be considered is whether the trial court erred in denying defendant’s motion for judgment of acquittal on the aggravated criminal sodomy charge made at the close of the State’s case. The defendant made two arguments to the trial court: there was insufficient evidence to show a sodomy occurred, and what occurred was really a single assault which merged into the homicide.
A trial judge in passing on a motion for a judgment of acquittal must determine whether, upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or a rational trier of fact, might fairly conclude guilt beyond a reasonable doubt. State v. Falke, 237 Kan. 668, 683, 703 P.2d 1362 (1985). Here, the trial court properly denied defendant’s motion for judgment of acquittal. Although, the defendant didn’t remember using anything on the victim’s rectum or anus, he stated in his confession he could have. He also stated he washed the hatchet, and the next day he dropped the hatchet near the dump. The hatchet, however, was discovered near the river in North Topeka, along with the pillowcase which contained the victim’s purse and the defendant’s jacket. Human blood was found on the hatchet, although the source could not be identified.
The victim’s rectum had been penetrated eight and one-half inches by a foreign object, and the injuries to the lining of the rectum were consistent with the handle of the hatchet. As to the lacerations to the skin surrounding the anus, Dr. Borel testified they could have been caused by the handle or by another object such as a knife. Dr. Eckert testified the injuries to the rectal area were more likely caused by a knife blade. Standard blades and hook-style blades were recovered from the defendant’s pickup. The evidence presented by the State would lead a reasonable mind to conclude the defendant was guilty beyond a reasonable doubt of aggravated criminal sodomy.
In his motion for judgment of acquittal on the aggravated criminal sodomy charge, the defendant also argued the aggravated criminal sodomy charge was part and parcel of the homicide and therefore the charges merged. We note the defendant was convicted by the jury of premeditated murder and not felony murder.
The felony-murder doctrine was recently discussed in State v. Brown, 236 Kan. 800, 803, 696 P.2d 954 (1985), as follows:
“To invoke the felony murder rule there must be proof a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983). However, the felony murder doctrine is not applicable when the other felony is an integral part of the homicide. State v. Clark, 204 Kan. 38, Syl. ¶ 1, 460 P.2d 586 (1969). In such a case the collateral felony is said to have merged with the homicide and results in only one offense. In order to make this determination, we have held:
“ ‘The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.’ State v. Rueckert, 221 Kan. 727, Syl. ¶ 6, 561 P.2d 850 (1977).”
The underlying felony in the felony-murder rule must be a forcible felony, one inherently dangerous to human life. State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983); State v. Underwood, 228 Kan. 294, 305-06, 615 P.2d 153 (1980). K.S.A. 21-3110(8) includes aggravated sodomy in its definition describing a forcible felony. Viewing the elements of aggravated criminal sodomy in the abstract, without considering the circumstances of the commission of the felony, we hold the felony of aggravated criminal sodomy is a felony inherently dangerous to human life and supports a felony-murder charge.
Turning to defendant’s argument the aggravated criminal sodomy charge merges with the charge of felony murder, we look to see if all the elements of the felony are present in the homicide. State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977).
K.S.A. 1985 Supp. 21-3501(2) defines sodomy as follows:
“ ‘Sodomy’ means oral or anal copulation; oral or anal copulation or sexual intercourse between a person and an animal; or any penetration of the anal opening by any body part or object. Any penetration, however slight, is sufficient to constitute sodomy. ‘Sodomy’ does.not include penetration of the anal opening by a finger or object in the course of the performance of:
“(a) Generally recognized health care practices; or
“(b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.”
The defendant was charged with K.S.A. 1985 Supp. 21-3506(c)(i), (ii). K.S.A. 1985 Supp. 21-3506 sets forth the elements of the offense of aggravated criminal sodomy, as follows:
“Aggravated criminal sodomy is:
“(c) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances;
“(i) When the victim is overcome by force or fear;
“(ii) when the victim is unconscious or physically powerless.”
K.S.A. 21-3401, first-degree murder, reads:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.”
It is clear from reading the statutes that all the elements of aggravated criminal sodomy are not present in the homicide. The charges do not merge as the defendant contends. The trial court did not err in denying defendant’s motion for judgment of acquittal on the charge of aggravated criminal sodomy.
The next issue defendant raises is whether the evidence was insufficient to support the conviction of aggravated criminal sodomy. The standard of review on appeal is whether the evidence 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. State v. Lile, 237 Kan. 210, 699 P.2d 456 (1985). The same facts discussed previously in our ruling on the denial of defendant’s motion for judgment of acquittal are relevant here and support our ruling that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The relevant elements of the offense of aggravated criminal sodomy are supported by substantial competent evidence. K.S.A. 1985 Supp. 21-3506(c)(i), (ii). The defendant admitted he could have sodomized the victim, although he didn’t remember it. The defendant’s intent can be inferred from all the evidence in this case. Testimony from both pathologists clearly established actual penetration, whether by a hatchet, knife, or similar object. A hatchet and some knife blades belonging to the defendant were admitted into evidence. Although it is not clear exactly when the sodomy occurred it appears from the defendant’s statement that initially he and the victim were fighting back and forth in the truck and he then grabbed her feet, dragged her out of the truck, got the roofing hatchet, and hit her with it. Clearly, the victim did not give her consent and was overcome either by force or fear, or was unconscious or physically powerless at the time of the sodomy. The defendant’s conviction of aggravated criminal sodomy is affirmed.
The defendant argues the trial court erred in its jury instructions. Instructions on the lesser included offenses of second-degree murder and voluntary manslaughter were given for the charge of premeditated murder. The trial court denied defendant’s requested instructions on the lesser included offenses for the alternative charge of felony murder. Again, we note that after less than three hours of deliberation the jury convicted the defendant of premeditated murder and not felony murder.
When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. State v. Murdock, 236 Kan. 146, 155, 689 P.2d 814 (1984); State v. Shaffer, 229 Kan. 310, 316, 624 P.2d 440 (1981); State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978); State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978). Based on the facts previously discussed, the evidence on the charge of aggravated criminal sodomy was neither weak, inconclusive, nor conflicting. The trial court properly refused the defendant’s requested instructions.
The defendant’s final argument concerns his sentencing. For the crime of first-degree murder, the defendant received a life sentence. For the crime of aggravated criminal sodomy, the defendant received a maximum sentence of fifteen years to life. The trial court ruled these sentences were to run consecutively, rather than concurrently. The defendant first argues the sentences imposed constituted an abuse of discretion because the defendant lacked a prior criminal record.
The determination whether separate sentences imposed on the same day should be concurrent or consecutive is discretionary with the trial court. K.S.A. 1985 Supp. 21-4608(1); State v. Coberly, 233 Kan. 100, 110, 661 P.2d 383 (1983); Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974). The sentencing criteria set forth in K.S.A. 21-4606 apply to a trial court’s determination of the sentence to be imposed and the sentence itself includes whether multiple terms of imprisonment are to be served consecutively or concurrently. State v. Adkins, 236 Kan. 259, 264, 689 P.2d 880 (1984). Upon appellate review, this court will not disturb a sentence on the ground it is excessive, provided it is within the statutory limits and within the realm of the trial court’s discretion, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Coberly, 233 Kan. at 111. When a trial court’s sentence is within the statutory limits set by the legislature, it will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. State v. Cunningham, 236 Kan. 842, 847, 695 P.2d 1280 (1985).
The sentences imposed herein are within the limits set by the legislature. K.S.A. 1985 Supp. 21-4501. It is clear from the record the trial court considered the sentencing criteria pursuant to K.S.A. 21-4606, where the defendant’s history of prior criminal activity is but one factor of seven to be considered at the time of sentencing. While the fact the defendant lacked a prior criminal record weighed in his favor, the other six factors considered by the trial court were unfavorable to the defendant. In imposing consecutive sentences, the trial court stated the crime committed was depraved, senseless, brutal, and completely unprovoked. We agree this crime was of a heinous nature. The victim was brutally stabbed, beaten and sodomized. In his own statement, the defendant admitted he left her and walked to a dead-end, and when he returned to the truck she was under a tree making a “gurgling sound.” He thought she was still alive, so he dragged her to the pond and “flung” her in. There is no showing the sentence is the result of partiality, prejudice or corrupt motive and, accordingly, we hold there was no abuse of discretion by the trial court in imposing consecutive sentences.
The defendant also argues the imposition of consecutive sentences constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Section 9 of the Rill of Rights of the Kansas Constitution. The defendant asserts his punishment is disproportionate to the crimes committed.
A similar argument was asserted in State v. Grantom, 229 Kan. 517, 520, 625 P.2d 499 (1981), where it was noted the constitutional provisions against cruel and unusual punishment are aimed primarily at the kind of punishment imposed rather than its duration. However, this court has recognized the length of a particular sentence may be so excessive as to constitute cruel and unusual punishment. State v. Weigel, 228 Kan. 194, 202, 612 P.2d 636 (1980); State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980). Some of the criteria to be considered in determining whether the length of a sentence is cruel and unusual punishment include excessiveness, disproportionality, lack of necessity, unacceptability to society and arbitrariness of infliction. State v. Weigel, 228 Kan. at 203.
We have reviewed the record and find none of the above criteria.
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|
The opinion of the court was delivered by
Lockett, J.:
Appellee, J. A. Tobin Construction Co., Inc., (Tobin) seeks review óf the dismissal of its cross-appeal. The Court of Appeals determined Tobin’s cross-appeal was not timely filed and dismissed it for lack of jurisdiction. We granted review. The only issue presented by this case is whether Tobin’s cross-appeal was timely filed. The facts and dates relevant to a determination of this issue are as follows.
Tobin, a contractor, brought suit against the Secretary of Transportation and Wyandotte County for breach of a road construction contract. Tobin contended it was damaged by the alleged delay in moving utility company facilities from the construction site. The County impleaded several utility companies, including Kansas City Power and Light Company (KCP&L) and Southwestern Bell Telephone Company (SWB).
On August 15, 1985, the district court entered judgment in favor of Tobin and against Wyandotte County in the amount of $25,686; against SWB in the amount of $77,059; and against KCP&L in the amount of $128,432.
Tobin, dissatisfied with the award, served all parties with a motion to alter or amend judgment on Monday, August 26, 1985, the last day for filing the motion, but failed to file the motion in the office of the clerk of the district court during the hours the courthouse was open to accept filings. Instead, that evening after the courthouse had closed, a courier employed by Tobin’s counsel attempted to file the motion with Judge Buchele at his residence. Mrs. Buchele informed the courier that the judge was not at home and suggested the motion be taken to the courthouse. Mrs. Buchele did not inform the courier that Judge Buchele was out of town from August 25 to August 28. Judge Buchele, upon returning to his office On August 29, reviewed Tobin’s motion and without noting the filing date on the motion sent it to the clerk’s office for filing. The motion was docketed by the clerk’s office on August 30, 1985.
KCP&L filed a notice of appeal on September 10, 1985, and SWB filed a notice of appeal on September 13, 1985. In the meantime, SWB filed a response to Tobin’s motion to alter or amend judgment and, as one of its points in opposition to the motion, contended the motion was not timely filed. Without specifically ruling on SWB’s response, Judge Buchele treated Tobin’s motion as if timely filed and considered it on its merits. On September 27, 1985, he entered an order sustaining in part and denying in part Tobin’s motion to alter or amend judgment. Following the court’s ruling on the motion, Tobin filed its notice of cross-appeal to the utilities’ appeal on October 17, 1985, within the time for cross-appealing from the ruling on its motion to amend, but out of time from the dates of the notices of appeal. The Court of Appeals determined the cross-appeal was not timely filed and dismissed it for lack of jurisdiction. We granted review.
In order to determine whether the cross-appeal was properly dismissed, we must decide whether Tobin’s motion to alter or amend judgment was timely filed, thus extending the time for filing a notice of cross-appeal.
K.S.A. 60-259(f) requires a motion to alter or amend judgment be served and filed not later than ten days after entry of judgment. Here, judgment was entered on August 15, 1985, and the motion to alter or amend judgment was served on all parties Monday, August 26, 1985. However, the motion was not actually filed with the clerk of the court until August 30, 1985, 15 days after entry of judgment.
The issue of whether or not Tobin’s motion was timely filed is significant because the running of the time for appeal is terminated by a timely motion to alter or amend judgment. K.S.A. 60-2103(a). Ordinarily, an appeal must be taken within 30 days from the entry of judgment. K.S.A. 60-2103(a). Appellee has 20 days after the notice of appeal has been served to file a notice of cross-appeal. K.S.A. 60-2103(h). Tobin’s notice of cross-appeal was not filed until October 17, 1985, over two months after entry of judgment and more than 20 days after appellants’ notice of appeal. Accordingly, the Court of Appeals determined the cross-appeal was not timely filed.
Tobin argues its cross-appeal was timely filed because the time for appeal did not begin running until September 27, 1985, the date of the court’s order on the motion to alter or amend judgment.
In determining whether Tobin’s motion to alter or amend judgment was timely filed, we look first to K.S.A. 60-205(e). That statute establishes the procedure necessary for a proper filing:
“The filing of pleadings and other papers with the court as required by this article shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.”
It is not argued that the papers were timely filed with the clerk of the court. Rather, Tobin contends this case meets the exception allowing papers to be filed with the judge, if the judge permits such filing. However, this case does not fall squarely within that exception. Judge Buchele was out of town and thus did not actually permit the papers to be filed with him on August 26. Rather, upon returning to his office, he reviewed the motion and forwarded it to the clerk’s office for filing. Thereafter, he ruled on the merits of the motion as if it had been timely filed. Tobin claims it relied on Judge Buchele’s accepting the motion for consideration and did not file a notice of cross-appeal until after a ruling on the motion was received.
Tobin urges us to consider and apply the case of Thompson v. I. N. S., 375 U.S. 384, 387, 11 L. Ed. 2d 404, 84 S. Ct. 397 (1964). In Thompson, the United States District Court denied Thompson’s petition for naturalization. The Canadian national served notice of motions to amend certain findings two days past the 10-day limitation. The government did not object to the timeliness of the motion and the district court specifically declared that the motion for a new trial was made in “ample time.” After the motion was denied, Thompson appealed within 60 days of the denial of the motion but not within 60 days of the entry of the final order appealed from. The Court of Appeals dismissed because the motion was untimely. The Supreme Court, in a 5 to 4 decision, permitted an appeal to be filed after the disposition of an untimely motion for new trial and beyond the time limitation for taking an appeal. The Court followed Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962).
When determining Thompson, the majority of the Supreme Court relied on two facts to find “unique circumstances” existed. First, the government raised no objection as to the timeliness of the motions and, second, the trial court specifically declared that the motion was made in ample time. The dissent in that case noted that the time requirements for filing post-trial motions and for filing appeals are mandatory and cannot be extended by the court or by the parties except, in the case of appeal, upon the showing of excusable neglect.
K.S.A. 60-2103 requires that a cross-appeal be taken within 20 days after the notice of appeal has been served except upon a showing of excusable neglect based on the failure of a party to learn of the entry of the appeal. Here, Tobin knew the date the notice of appeal was served and filed with the clerk. The parties objected to the timeliness of Tobin’s motion and the district court made no specific finding that the post-trial motion had been- filed with it within the time period allow by the statute. Thompson does not support Tobin.
Nor does Harris support Tobin’s position of “unique circumstances.” In Harris, the counsel who had the sole responsibility for determining whether or not an appeal should be taken was vacationing. Trial counsel filed a request for an extension of time to file a notice of appeal within the 30-day time period. The trial court granted the extension of time for the filing of the notice of appeal which was then filed within the extended period granted by the trial court. The Court of Appeals for the Seventh Circuit dismissed the appeal on the ground that an extension was not warranted.
On certiorari, the United States Supreme Court vacated and remanded. The court held that the motion judge’s finding was entitled to great deference and should not have been disturbed, in light of the unique circumstances of the case, and especially in view of the fact that the motion for an extension was granted within the 30-day period allowed for filing a notice of appeal.
Tobin’s motion was not filed within the 10-day period allowed by statute nor did Tobin file a motion to enlarge the time for filing the motion to alter or amend judgment after the expiration of the 10 days. Harris does not support Tobin.
The district judge has the power to enlarge the time for performing certain acts under K.S.A. 60-206(b):
“When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge’s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under K.S.A. 60-250 (b), 60-252 (b), 60-259 (b), (d) and (e) and 60-260 (b) except to the extent and under the conditions stated in them.”
A motion to alter or amend judgment (K.S.A. 60-259[f]) is not excluded from the provisions of K.S.A. 60-206(b)(2). Thus, the trial judge has authority to extend the time in which to file a motion to alter or amend judgment upon timely request made within the originally prescribed time or upon motion made after the expiration of the specified period. Unfortunately, Tobin neither requested nor filed a motion to permit filing out of time.
Can the depositing of a motion to alter or amend judgment in the judge’s office within the filing period be treated as both a motion to alter or amend judgment and a motion to allow the filing of that motion after the expiration of the time period? Statutory rules of appellate procedure usually receive liberal construction to accomplish the ends of justice, although such statutes are strictly construed. Atkinson v. U.S.D. No. 383, 235 Kan. 793, 684 P.2d 424 (1984). Under the rules of statutory construction, a motion to alter or amend judgment cannot be converted into an additional motion that was never filed or ruled upon by the district court. The district court could not consider Tobin’s post-trial motion as a request to enlarge the filing period because of excusable neglect.
Tobin claims that Judge Ruchele had permitted motions and other documents to be filed with him throughout the nearly three years this case was pending before him. In addition, he allowed papers to be filed at his residence or delivered to his chambers, rather than to him personally. Therefore, Tobin contends it should be able to rely on the judge’s prior acts of accepting pleadings as approval that all papers presented in the future would be accepted and considered filed.
Appellants argue that the procedure followed by Tobin does not come within the filing definition set out in K.S.A. 60-205(e) under any set of circumstances. Specifically, they argue K.S.A. 60-205(e) requires the moving party obtain the judge’s actual permission to file papers with the judge. Additionally, SWB and KCP&L contend it is not sufficient to deliver the papers to the judge’s chambers — they must be delivered to the actual possession of the judge.
K.S.A. 60-205(e) is similar to Rule 5(e) of the Federal Rules of Civil Procedure. Rule 5(e) provides that a judge may permit pleadings and other papers to be filed initially with him prior to their transmission to the clerk’s office for entry on the docket sheet. Under this procedure, filing is complete when the judge has custody of the papers. The judge’s failure to forward the papers forthwith or to enter a necessary date does not prejudice the party attempting to comply with the filing requirement. 4 Wright & Miller, Federal Practice and Procedure: Civil § 1153 (1969). Thus, as soon as the judge personally accepts the papers, they are filed within the meaning of both Rule 5(e) and Rule 25(a) of the Federal Rules of Appellate Procedure. The purpose of allowing pleadings to be filed with a judge is not to make the judge an alternate depository for the clerk, but to avoid delay and to facilitate the implementation of temporary restraining orders and the hearing of emergency applications. Application of President & Directors of Georgetown Col., 331 F.2d 1000, 1001 n.2 (D.C. Cir.), cert. denied 377 U.S. 978 (1964).
There are no Kansas cases interpreting whether depositing pleadings in the judge’s chambers is sufficient for filing under 60-205(e). The statute is not to be construed in a manner that leads to uncertainty, injustice or confusion, if it is possible to construe it otherwise. The words and phrases of the statute are to be construed according to context and the approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108 (1980).
In Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), the Haley court construed the meaning of service on an “individual” under K.S.A. 60-304(a) as not to include leaving a copy of the petition and summons with the individual’s secretary. Jurisdiction over the person could only be acquired by the method prescribed by the statute. In Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980), Justice Prager, writing for the court, reached the same conclusion, that service upon Bayles’ secretary was not service upon the “individual” Bayles.
Using die rules of statutory construction and reviewing prior decisions of this court interpreting similar statutes, does the 60-205(e) exception to filing with the clerk include depositing the pleadings in the judge’s office, as Tobin claims? The statute requires that pleadings and other papers be filed with the clerk, “except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.” The meaning of the statute is clear. F irst, the judge must accept the filing of the papers with him. If the judge accepts the papers, he must at that time note the date of his acceptance and then forthwith take the papers to the clerk. The plain language of the statute cannot be interpreted to include leaving the papers with the judge’s wife, secretary or bailiff or leaving the papers in the judge’s car, home or office.
K.S.A. 60-205(e) provides that a judge may accept pleadings and other papers to be filed initially with him prior to their transmission to the clerk’s office for entry on the docket sheet. Under this procedure, filing is complete when the judge personally accepts custody of the papers. The purpose of K.S.A. 60-205(e) in allowing pleadings to be filed with a judge is not to make the judge an alternate depository for the clerk, but to avoid delay and to facilitate the implementation of temporary restraining orders and the hearing of emergency applications.
The right to appeal is entirely statutory and not a right vested in the federal or Kansas constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes. Tobin’s time for filing the motion to alter or amend judgment had expired. Tobin’s cross-appeal was out of time and properly dismissed by the Court of Appeals.
The judgment of the Court of Appeals is affirmed and Tobin’s cross-appeal is dismissed. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by a dependent to recover compensation for the death of a workman under the provisions of the workmen’s compensation act (G. S. 1949, Ch. 44, Art. 5). The trial court made findings of fact in favor of the claimant, the widow and sole dependent of the deceased, and allowed compensation. Respondents bring the case here and contend that the trial court erred in two respects: (1) In finding that there was substantial evidence that decedent sustained personal injury by accident arising out of and in the course of his employment, and (2) in the amount of compensation awarded.
. It was stipulated that decedent was an employee of respondent motor company, operating under the workmen’s compensation act, and that notice was received and written claim made within the statutory period.
A brief résumé of the pertinent facts follows: Henry E. Alpers, at the time of his death, was employed as a car salesman by respondent-appellant George-Nielsen Motor Company of Dodge City. During the course of his employment he occasionally went to Kansas City and elsewhere to pick up new cars, driving them back to Dodge City. On the night of November 7, 1956 he and his stepson had gone to Kansas City by rail for the purpose of picking up two new automobiles for respondent motor company. The next morning they were driven to the Buick warehouse in Kansas City, arriving there between 7:30 and 8:00 o’clock. The weather was cold — officially 32 to 34 degrees at the airport — a north wind was blowing and it was spitting snow. Alpers had no overcoat and stood in the cold outside the warehouse until it opened at 8:30 a. m. Although a man sixty-one years of age, with a heart condition and still recovering from an appendectomy performed on September 17, he appeared to be feeling good and in the best of spirits. Shortly after 10:00 a. m., he and his stepson drove one of the two promised new cars to a filling station some six blocks south and west of the warehouse, where Alpers left his stepson with instructions to drive the new car back to Dodge City. Facing the north wind, he walked back to the warehouse. As he reached the building, he met Reverend Everett -J. Vaughan and told him that he regretted having made arrangements to drive the second car back to Dodge City as he did not feel well. Reverend Vaughan noticed that Alpers had his suitcoat collar turned up and appeared chilled. When he saw Alpers a few minutes later inside the warehouse he was dying. Decedent’s body was taken to Providence Hospital in Kansas City, where Dr. William Lasser, deputy county coroner, pronounced him dead. Doctor Lasser testified that death was due to an acute coronary occlusion.
Dr. Robert C. Gribble, a specialist in internal medicine and diseases of the heart, who each year attends at least two graduate schools dealing mostly with heart cases, testified that decedent had been a patient of his for the seven years preceding his death and that he had treated him last on October 10, 1956; that at that time he was convalescing satisfactorily from an appendectomy; that his blood sugar was a little higher than it should have been because of his diabetic condition; that he was still somewhat short of breath, especially on exertion, due to his heart condition, which resulted from overwork of the right side of the heart due to chronic lung conditions; and that the patient was continuing his heart medication [digitalis] on his advice. He further testified, “My opinion in this case, from knowledge of the patient and the history, would be that he died from an acute coronary occlusion or an acute pulmonary edema”; that decedent’s condition was basically “myocarditis, chronic,” which made him more predisposed to having a coronary occlusion. He further testified that he would assume decedent’s type of heart disease would not cause death at rest and without excessive exertion, although at times and in certain cases normal walking is considered over-exertion; that, “My experience has been that exposure to the cold is one of the most common precipitating factors in the development of an acute coronary occlusion”; and that Alpers’ exercise, his walking in the cold wind, was a contributing factor which aggravated and precipitated the sudden entrance of a blood clot from the circulatory system into a coronary vessel, which in turn caused death.
Dr. Sherman M. Steinzeig, witness for respondent and heart specialist, testified that there are many causes of sudden death but statistically the most likely cause is a coronary occlusion; that, “Certainly, exposure to cold, exertion, particularly cold and exertion above and beyond that that the patient is usually exposed to, as well as emotional strain, trauma, trauma due to surgery, can be precipitable factors, as well as any other precipitating factors”; that normal walking in 33 degrees Fahrenheit weather could possibly have been the contributing or precipitating factor which caused decedent’s death; and that exposure to normal cold and normal exertion would be a precipitating factor in a coronary occlusion case.
The trial court found that Alpers sustained personal injury by accident, resulting in his death, arising out of and in the course of his employment with respondent motor company.
Respondents first contend that there was no evidence justifying personal injury by accident which resulted in decedent’s death. In making this contention, they concede that the sufficiency of evidence to support a finding of fact is a question of law to be determined by this court on appellate review. In so doing, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in considering all of the evidence this court is required to review all testimony in the light most favorable to the prevailing party below. If, when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed. (Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259; McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197, and cases therein cited.)
Respondents rely on the recent case of Taber v. Tole Landscape Co., 181 Kan. 616, 313 P. 2d 290, as holding that exposure to the elements must subject the employee to a greater hazard or risk than that to which he would have otherwise been exposed; that in the instant case the deceased was not exposed to any more risk than had he not been working and had merely walked to the corner grocery for a loaf of bread. We are unable to accept this view. It was stated in that opinion:
“It has been held many times that the compensation act prescribes no standard of health for a workman, and if his physical structure gives way under the stress of his usual labor his death is an accident which arises out of his employment. Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197.)
“From the foregoing, and other authorities dealing with injuries resulting from exposure to the elements, such as in this case — natural heat — the general rule appears to be that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury.” [l. c. 620]
The facts in the instant case and the question involved are somewhat similar to those in our recent case of Pinkston v. Rice Motor Co., supra, and we think the rules of law as applied to the facts in that case are controlling here. We defined the terms “personal injury” and “accident,” citing many of our authorities in support thereof, and no useful purpose would be gained in reiterating them here. We also stated that this court has previously held that coronary occlusion, coronary thrombosis, cerebral hemorrhage, or heart failure — acute, which resulted in death or disability to a workman, was personal injury by accident when it arose out of and was received in the course of the employment. (Riggs v. Ash Grove Lime & Portland Cement Co., 131 Kan. 244, 289 Pac. 410; Carney v. Hellar, supra; Peterson v. Safeway Stores, 158 Kan. 271, 146 P. 2d 657; Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863; Earhart v. Wible Ice & Cold Storage Co., 150 Kan. 695, 95 P. 2d 366; Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103.)
In the present case there is ample evidence that decedents death was caused by coronary occlusion; that the occasion of his death was sudden, unexpected and undesigned; that the facts and circumstances surrounding decedent’s activity from 7:30 a. m. until his death between 10:00 and 10:30 that morning — his standing outside in the cold for at least thirty minutes (from 8:00 to 8:30 a. m.) and subsequently walking six blocks into a cold north wind, in spitting snow and with the temperature at the freezing mark, being improperly dressed for the occasion — were such as would have authorized the trial court under the evidence presented to relate the coronary occlusion to physical exertion and to conclude that such exercise in freezing temperature was a contributing factor which aggravated and precipitated the sudden entrance of a blood clot from the circulatory system into a coronary vessel, which in turn caused death. Under the record, it cannot be denied that decedent’s work exposed him to a greater danger than if he had not been working. His employment under the circumstances subjected him to a greater hazard or risk than that to which he would have otherwise been exposed. (Taber v. Tole Landscape Co., supra.) We are of the opinion that the record discloses sufficient competent evidence to support the trial court’s finding.
Respondents contend that the trial court erred in computing the amount of compensation due claimant. (G. S. 1957 Supp., 44-510.) They assert that decedent’s earnings record introduced in evidence discloses that he worked for respondent motor company from June 16 until November 8, 1956, a period of twenty-one weeks, earning $1594.70; and that there was no evidence upon which the trial court could base its finding that decedent worked but eighteen weeks. The record shows that decedent’s employment was interrupted by illness. Respondents have not made it affirmatively appear that the trial court erred in its finding and judgment.
In view of what has been said above, the judgment of the trial court is affirmed.
It is so ordered.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from a judgment in a personal injury case.
The appellee, Roy H. Carlburg, sued the appellant, the Wesley Hospital and Nurse Training School, for damages for personal injuries sustained by him while a patient in the hospital.
Carlburg was a patient in the hospital for a series of operations. After the second operation and while still under the influence of an anesthetic, Carlburg was moved from the recovery room to a room which he was to occupy as a patient. Shortly afterward he fell out of bed sustaining severe injuries.
In his petition he alleged that the hospital, its employees and attending nurses, neglected to place the side boards on the bed in an upright position to protect and prevent him from falling out of bed.
The case was tried to a jury which returned a verdict of $41,259.17 in favor of Carlburg.
Appellant makes six specifications of error:
“1. The trial court erred in overruling the defendant’s demurrer to the plaintiff’s evidence. ...
“2. The trial court erred in restricting the cross-examination of plaintiff’s witnesses and its ruling on hypothetical questions.
“3. The trial court erred in giving Instruction No. 7 over the recorded objection of the defendant.
“4. The trial court erred in its failure to give defendant’s requested Instruction No. 1, No. 2, No. 3, No. 5, and No. 6 over the récorded objection of the defendant to the court’s failure to give those requested instructions.
“5. The trial court erred in overruling the defendant’s motion for a new trial.
“6. The trial court erred in entering judgment for the plaintiff and against the defendant absent approval of the jury’s verdict.”
In a demurrer to the evidence this court is called upon to review only the sufficiency of the evidence and not to weigh it for the purpose of rendering a decision on the merits of the action, and this same duty is. incumbent on the trial court. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of the evidence as true, shall consider that favorable, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable, and shall not weigh any part that is contradictory, nor weigh any difference between direct and cross-examination, and give the evidence a liberal construction resolving all doubt against the party making the demurrer and, if so considered, there is any evidence which supports or tends to support the case on any theory, the demurrer shall be overruled. (Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061, and authorities cited therein.)
We have examined the record within the limitations of this rule. The trial court did not err in overruling appellant’s demurrer to the evidence.
Appellant contends the trial court restricted its cross-examination of appellee’s witnesses and erred in its ruling on hypothetical questions.
Appellee called Collis Graber as a witness. On direct examination it was established that she was a registered nurse who was on private duty near the room to which appellee had been removed from the recovery room, and had found him lying on the floor after he had fallen from bed. The witness declared that it was only recently that recovery or wake-up rooms had been used. No attempt was made to determine whether she knew of recovery room procedure or whether she in fact had any experience with it. On cross-examination appellant propounded a hypothetical question on whether, on an assumed set of facts, it was good medical care to let appellee go from the recovery room. Counsel for appellee objected and the court sustained the objection on the ground that the facts of the question were not in evidence.
Appellant contends that the court erred in its ruling in that on cross-examination hypothetical questions asked of expert witnesses need not be limited to the testimony in the case but may be based on conjectural facts, citing Jones on Evidence [4th Ed.], Volume 2, § 389, pp. 734-735; Levine v. Barry, 114 Wash. 623, 195 Pac. 1003; Rogers on Expert Testimony [2nd Ed.], § 33, p. 79; Proechel v. United States, 59 F. 2d 648; Fort Worth & Denver Railway Company v. Janski, 223 F. 2d 704; Polley v. Oil Co., 89 Kan. 272, 131 Pac. 577; Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293; Bever v. Spangler and Blake, 93 Iowa 576, 61 N. W. 1072; Tele graph Co. v. Morris, 67 Kan. 410, 73 Pac. 108; Roark v. Greeno, 61 Kan. 299, 59 Pac. 655; Eames v. Clark, 104 Kan. 65, 177 Pac. 540; Cooper v. Helmerich & Payne, 162 Kan. 547, 178 P. 2d 242.
We do not question the rules of law stated by these authorities but we cannot agree that they are applicable here. It is clear to us that hypothetical questions may be asked only of expert witnesses; that nonexperts may not testify as to their conclusions or opinions, either generally or on . the basis of an assumed set of facts. This rule follows from the principle that the opinion of a nonexpert is unnecessary since the jury possesses the same skill as he in drawing inferences from the circumstances. (Miller v. Knights and Ladies of Security, 103 Kan. 579, 175 Pac. 397; Oil Co. v. Drilling Co., 80 Kan. 261, 101 Pac. 1072; Tefft v. Wilcox, 6 Kan. 33 [2nd Ed.]; 2 Wigmore, Evidence § 679 [3rd Ed., 1940].)
Here the witness was not qualified as an expert and there is nothing in the record to indicate she was so considered by the court. As a general rule the possession of special and peculiar experience in relation to the subject matter must be expressly shown to qualify the witness as an expert. (Denver v. Railway Co., 96 Kan. 154, 150 Pac. 562; A. T. & S. F. Rld. Co. v. Sage, 49 Kan. 524, 31 Pac. 140.) Here no testimony was offered of any occupational experience or systematic training of the witness which would make her opinion on recovery room procedure of any value. Indeed no attempt was made to show that the witness had any personal experience with the methods of recovery room treatment.
Since the witness was not qualified as an expert it was improper to propound a hypothetical question to her and the court’s ruling in sustaining the objection to the question was correct.
Appellant also maintains that the trial court unduly restricted his cross-examination of other witnesses; that in view of the court’s ruling on the hypothetical questions asked of Collis Graber it was not possible to pose similar hypothetical questions to other witnesses. This contention is without merit. Other of the witnesses were clearly qualified as experts on recovery room techniques and were qualified to answer any properly propounded hypothetical questions on recovery room procedure.
Appellant also specifies as error the failure of the trial court to give his requested instructions (Nos. 1, 2, 3, & 5) and the giving of instruction No. 7 over objection.
Appellant first requested an instruction (No. 1) on unavoidable accident. The court did not so instruct.
Generally speaking, when an accident is caused by negligence there is no room for application of the doctrine of “unavoidable accident,” even though the accident may have been “inevitable” or “unavoidable” at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the accident is thus “inevitable” or “unavoidable” at the time of its occurrence. In other words, a person is liable for the combined consequences of an “inevitable” or “unavoidable” accident and his own negligence. (Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459.)
The facts of the accident in the case at bar do not bring it within the doctrine of “unavoidable accident.” The term “unavoidable accident” excludes and repels the idea of negligence. It is an occurrence which is not contributed to by the negligent act or omission by either party. The term is synonymous with “mere accident” or “pure accident.” These terms imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control. (Knox v. Barnard, supra; Schmid v. Eslick, supra.)
Carlburg, who at the time of the accident was in at least a semiconscious condition, was under the complete control of the hospital, its employees and attendants. There was nothing unavoidable about this accident. Either the hospital was negligent in its duty to Carlburg or it was not and the court so instructed the jury.
Appellant requested the following instructions:
“No. 2
“You are instructed that the extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case. A private hospital owes its patients the duty of protection, and must exercise such reasonable care toward a patient as his known condition may require. The measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally' in that community, and required by the express or implied contract of the undertaking.
“Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P. 2d 258.
“No. 3.
“You are instructed that the plaintiff in this case has not pleaded or proved that any special contract existed between him and the defendant. In the absence of any special contract, the rule of reasonable care as elsewhere set forth in these instructions defines the duty of the hospital to the patient. In the absence of a special contract, there is no rule that the hospital must have a nurse in constant attendance of a patient, the rule being only that it exercise reasonable care toward a patient as his known condition may require.
“No. 5.
“You are instructed that a hospital’s duty to use reasonable care is limited by the rule that no one is required to guard against or take measures to avert that which a reasonably prudent person under the circumstances would not anticipate as likely to happen. No man does or is required to take measures to avert dangers which the circumstances as known to him do not suggest as reasonably likely to happen. It is only when they have notice of some activity or action on the part of a patient that might cause him injury that they are required to be on guard against such an injury.
“Fetzer v. The Aberdeen Clinic, 48 S. D. 308, 204 N. W. 364.”
The court instructed as follows:
“No. 7.
“You are instructed that if you find from the evidence that the defendant accepted the plaintiff, Roy Carlburg, as a patient and undertook to give him such care, nursing and attention as was reasonably necessary in view of his known condition, and negligently failed to keep and perform its undertaking, then, in that case, the defendant is hable for any injury which proximately resulted from such failure.
“You are further instructed that the measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in this community, and required by the express or implied contract of the undertaking. •
“No. 8.
“You are instructed that the plaintiff herein is not relying on any special contract in this case.
“No. 9.
“You are further instructed that a hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.”
Appellant complains that instruction No. 7 given by the court is not sufficient as a matter of law and contends that its instructions Nos. 2, 3, and 5 should have been given.
The Marks case is the law of this state and the court could havé well used instruction No. 2; however, in our opinion instructions Nos. 7, 8, and 9 which were given are substantially the same as those requested. The trial court did not err in its instructions.
We have thoroughly examined specifications of error five and six and find no reversible error.
Appellant also argues that the' verdict is excessive and that a remittitur ought to be ordered. While the verdict is substantial it is not excessive in the minds of the court. We have examined the record and are satisfied that the evidénce sustains the award of damages made by the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This appeal involves the validity of ordinance No. 961 of the city of Beloit (a city of the second class), which pro vides for the regulation and licensing of the production and distribution of milk sold for ultimate consumption within the city.
In a complaint filed in the police court of the city of Beloit, Joe Lamborn, defendant (appellant), was charged with bringing milk into the city for distribution and sale without a distributor’s permit in violation of city ordinance No. 961. On appeal to the district court, defendant moved to quash the complaint, setting forth eight separate grounds as to its invalidity. The motion was overruled. Defendant was found guilty and sentenced to pay a fine of ten dollars. He appeals.
The cause was submitted to the district court upon an agreed statement of facts, and exhibits were received in accordance therewith. It was stipulated that defendant was employed by Valley Dairy, Inc. (hereinafter referred to as “Valley”), a broker and distributor of milk with its principal place of business at Red Cloud, Nebraska. Valley is authorized to do business in Kansas and has a dairy manufacturer’s license and a broker’s license issued to it by the dairy division of the Kansas department of agriculture. Defendant was arrested and charged with bringing milk into the city for sale at the direction of his employer Valley, which had no city distributor’s permit.
Ordinance No. 961 was adopted February 15, 1955. The full title of the ordinance, so far as is material here, is as follows:
“An ordinance to regulate the production, transportation, processing, handling, sampling, examination, grading, labeling, regarding, and sale of milk and milk products; the inspection of dairy herds, dairies, and milk plants; the issuing and revocation of permits to milk producers, haulers, and distributors; the establishment of permit fees; the fixing of penalties; . . .”
The ordinance defines milk products and then excludes from its coverage all products except fluid milk. It provides that only Grade A pasteurized milk which rates not lower than ninety per cent under the Public Health Service rating system shall be sold in the city, although milk which does not meet this standard may be degraded and sold for temporary periods or during emergencies. Other sections prescribe sanitary standards for dairies and for vehicles used in transportation of milk. Section 9 provides that milk for pasteurization, unless delivered to a milk plant or receiving station within two hours after milking, shall be cooled and maintained at sixty degrees Fahrenheit, or less.
Section 14 provides that milk from points beyond the limits of routine inspection of the city, except milk for manufacturing purposes, may not be sold in the city unless produced and/or pasteurized under conditions equivalent to those provided by the ordinance. Distributors are required to furnish statements of the sources and quantities of milk purchased and sold, records of inspection and tests, and certification to the city health officer that the milk rates not less than ninety per cent on the Public Health scale.
Section 15 of the ordinance provides for issuance of a producer’s and a hauler’s permit upon payment of fees of one dollar and five dollars, respectively. Distributors’ permits may be issued to distributors within the city’s jurisdiction or from points beyond the area of its routine inspection, upon compliance with section 14 and upon payment of a yearly fee of $225. It was further stipulated that beginning January 1, 1957 the distributor’s permit fee was reduced to $125.
One dairy in Beloit and four dairies outside the limits of the city’s inspection had each paid the $225 fee and had secured distributors’ permits. Valley had not paid the Beloit distributor’s permit fee of $225, although its Nebraska processor had been granted for its pasteurized milk a ninety-two per cent rating on the United States Public Health Service scale and Valley had secured a certificate of conformity with the Grade A rules and regulations of the Nebraska department of agriculture and inspection.
Finally, it was stipulated that the city of Beloit had no milk inspector and all inspections were made by an employee of the dairy division of the Kansas department of agriculture, for which the city paid the sum of forty dollars a month to the office of the dairy division.
Defendant contends here that ordinance No. 961 is void. He maintains first that the state covers the entire field of .licensing and regulating nonresident manufacturers and distributors of dairy products by the terms of G. S. 1949, 65-701 et seq., and there is no power in the city to regulate in the premises. In the alternative, he argues that even if the city has authority to enact ordinances concerning the production and sale of dairy products, the ordinance in question conflicts and is inconsistent with the state law and is therefore invalid.
G. S. 1949, 65-701 et seq. imposes a duty on the state dairy com missioner to inspect creameries and dairies, to prohibit the production and sale of unclean and unwholesome dairy products, and to take samples of dairy products and have them analyzed and tested. Standards are set forth for cleanliness of premises and utensils and for minimum butterfat content of dairy products, and it is made unlawful to sell or offer for sale milk or other dairy products from diseased animals, or products which have been exposed to contamination. Milk or cream brokers must secure licenses to operate their businesses, for which an annual license fee of ten dollars is imposed. It is made unlawful for any person to sell or offer for sale dairy products manufactured outside the state without obtaining a manufacturer’s license from the state dairy commissioner upon payment of a ten dollar fee. Samples of such products moved into the state must, upon request, be submitted to the state dairy commissioner, who issues a license if the products are up to standard and in compliance with state laws.
The department of agriculture, acting through the dairy commissioner, has promulgated regulations for Grade A milk and milk products which, by the provisions of G. S. 1949, 77-410, have the force and effect of law. The regulations, after defining milk products, prescribe certain sanitary standards for dairies and vehicles and provide that milk for pasteurization, if held by the producer for longer than two hours after milking, must be cooled and kept at fifty degrees Fahrenheit, or less. Set forth are minimum sanitary cow health and bacterial count standards for Grade A raw milk not for pasteurization. In addition, Section 4-7-50.10.1 provides that Grade A milk and milk products from points beyond the limits of routine inspection of the state may not be sold in Kansas, unless produced and/or pasteurized under provisions substantially equivalent to the requirements of the regulations.
G. S. 1949, 14-401 provides that cities of the second class shall have the power to enact ordinances not repugnant to the constitution and laws of the state and as deemed expedient for the health, good government and peace of their inhabitants. In Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101, this court declared that the legislative policy of the state, since its founding, has been:
... to confer on the cities the right of self-government in such large measure that it amounts to the possession of police power where the safety, health and general welfare of its people are concerned.” (1. c. 833)
Instead of specifically defining every act necessary to the health, safety and peace of the public, the legislature granted authority (14-401) to the cities to determine by ordinance what was best for the general health and welfare of their inhabitants. Before it can be held that the enactment of the state dairy law (Ch. 65, Art. 7) has taken away from the cities of the state the right to regulate a matter so clearly connected with the health of their inhabitants as the production and sale of milk (Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548), such intent must be manifested clearly by the legislature in the provisions of the statute. (Ash v. Gibson, supra.)
In Ash v. Gibson, 146 Kan. 756, 74 P. 2d 136, the statute there in question declared expressly that its object was to provide uniform regulation of vehicular traffic throughout the state. The city ordinance flatly forbade the transportation of gasoline in amounts larger than 600 gallons, although the statute directed that cities should designate streets and highways on which trucks and other commercial vehicles might be operated. Considering the express intent of the legislature and the provisions of the statute which regulated certain aspects of city traffic and granted other powers to cities, this court declared that the state had pre-empted the field and the statute withdrew from the city power to enact the ordinance in question.
Where the legislature intends to specifically or exclusively reserve to the state the power to regulate, such intent is clearly manifested in the statute. (Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P. 2d 544.) In the instant case, we can find no such intent in the state dairy law (Ch. 65, Art. 7) or in the regulations promulgated by the dairy commissioner. The regulation of the production and sale of milk is within the province of the city, and defendant’s first contention must fail.
Neither can we sustain defendant’s contention that the ordinance conflicts and is inconsistent with the state law. An ordinance enacted in the exercise of police power is not necessarily inconsistent with a state law on the same subject simply because the city pro-, vides higher standards than those provided by the statute. (Kansas City v. Henre, supra, 797.) An ordinance may not ignore the state’s regulatory acts, nor deny rights granted by the state, nor grant rights denied by the state so as to nullify the state law (Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241); but we have declared, many times that a city by ordinance may extend regulation beyond the limits of general state statutes dealing with the same subjects. (Kansas City v. Henre, supra; Garden City v. Legg, 126 Kan. 569, 268 Pac. 827; State v. Reynolds, 152 Kan. 762, 107 P. 2d 728; City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306.) It may be necessary in a congested district such as a city to make stricter regulations than are made and enforced by statute for the state at large. (Kansas City v. Henre, supra, 797, 798; Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101.)
Here the statute and regulations prescribe sanitary conditions and provide for licensing and inspection of products which come from beyond the routine area of state inspection. The ordinance extends the regulation to provide that only Grade A pasteurized milk may be sold within the city. The inspection and licensing provisions of the ordinance are designed to enforce this stricter standard. We cannot say that this ordinance conflicts with the state statute. Rather, it extends regulations beyond the limits of the statute. Both the statute and the ordinance may therefore be enforced.
Defendant contends, however, that the statute and ordinance conflict, in that the regulations promulgated by the dairy commissioner provide that milk for pasteurization must be cooled and kept at fifty degrees Fahrenheit, or less, while the ordinance provides for cooling and maintenance at sixty degrees Fahrenheit, or less. The section of the ordinance in question is clearly in conflict with the state law. It is less strict than the state regulation and, in effect, grants a right denied by the state. The section, however; is severable from the other provisions of the ordinance, and its invalidity does not affect the validity of the other sections.
Defendant next urges that the ordinance is discriminatory and does not tend to promote the health of the community, in that it excludes all products except fluid milk from its scope. To be valid, a distinction imposed by an ordinance must be reasonable and must rest on some ground of difference fairly related to the object of the legislation. (Matheny v. City of Hutchinson, 154 Kan. 682, 121 P. 2d 227; Oklahoma City v. Poor, Okl., 298 P. 2d 459.) There are good reasons why the governing body of the city might choose to regulate the sale of milk and leave the regulation of other milk products to the lesser requirements of the state. There is a greater traffic in milk than in other dairy products and, hence, more frequent inspection than can be provided by the state may be necessary to safeguard the health of the inhabitants of the community. We cannot say there is no reasonable basis for the city’s regulation of fluid milk only.
Defendant also argues that the ordinance places an unreasonable burden on interstate commerce and violates the interstate commerce clause of the United States constitution. This contention is without merit. In Dean Milk Co. v. Madison, 340 U. S. 349, 71 S. Ct. 295, 95 L ed 329, cited by defendant, the municipal ordinance held repugnant to the interstate commerce clause completely barred the sale of pasteurized milk unless it had been pasteurized and bottled at a plant within five miles from the center of the city, or unless its source had been inspected by city officials, whose inspection radius extended only twenty-five miles from the center of the city. The court held that, in practical effect, the ordinance excluded wholesome milk produced and pasteurized in another state, a result the city could not reach if reasonable nondiscriminatory alternatives to protect the health of its inhabitants were available. In the instant case, the ordinance passed by the city to protect the health and safety of its inhabitants does not exclude or discriminate against milk coming from Nebraska or from anywhere else, either within or without the state. It only requires that all milk sold in the city of Beloit be Grade A pasteurized milk which rates not lower than ninety per cent under the Public Health Service rating system.
Defendant’s next argument is that the $225 permit fee required by the ordinance is unreasonable and oppressive. This court has held that there must be a wide discretion vested in the governing bodies of cities as to the amount of a license fee; that the courts will not interfere unless the fee imposed is flagrantly excessive. (City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296; In re Martin, 62 Kan. 638, 64 Pac. 43; Matheny v. City of Hutchinson, supra.) In State, ex rel., v. Ross, 101 Kan. 377, 166 Pac. 505, a state regulatory statute was challenged on the ground that the income derived from the fees exacted so exceeded the expenses of its enforcement as to characterize it as a revenue measure which, under the facts of the case, would have been invalid. The court declared:
“The mere fact that the fees charged under such a statute exceeded the expense of its execution is not enough to render it invalid ... To have that effect one of two conditions must be met: either the discrepancy must be so great that the court is forced to the conclusion that the legislature in the first instance acted in bad faith, and intended to produce a revenue under the pretext of requiring an inspection, or else' the law-making body must have neglected an opportunity to revise the charges exacted after experience had demonstrated beyond controversy that as previously imposed they were unreasonably and unnecessarily high.” (1. c. 379)
We cannot say that the $225 fee here is excessive or oppressive. Defendant would have us say that the discrepancy between the stipulated forty dollars a month or $480 a year paid by the city for the services of the state inspector and the total income of some $1125 a year from five distributors indicates that the fee exacted is excessive. The record does not indicate that the payment to the dairy inspector is the only expense incurred by the city. In any event, the fee of forty dollars a month is the amount paid for routine inspection. Emergency situations involving widespread contamination or outbreak of disease would require expenditure of greater sums for more frequent inspection.
In addition, when the city adopted the ordinance, it was acting without practical experience to guide its judgment. It did not know how many distributors would secure licenses or how much work would be required of the inspector or what other incidental expenses would arise. After experience had demonstrated that the charges were higher than necessary in view of the number of distributors who procured licenses and the actual expenses of inspection, the city lowered the license fee to $125 a year.
Finally, the argument that the city fee is unreasonable because the state fee is only ten dollars a year has no merit. The reasonableness of the state fee, based on the number of distributors on whom it is imposed and the extent of the state’s services, has little or no bearing on the reasonableness of the city’s fee.
Defendent also argues that the regulation and the inspection required by the ordinance are exact duplications of the state requirements and this duplication indicates that the city ordinance adds nothing to the health of the city’s inhabitants but, in fact, is designed to restrict outside competition. It must be noted first that the city ordinance extends the state requirements by permitting only Grade A pasteurized milk to be sold within the city. Granting that the city, if it chose to do so, could enforce its standards merely by requiring distributors to present certification by the Public Health Service or certification by the state that its Grade A requirements had been met, the city’s inspection cannot be considered a needless duplication unrelated to the health of the city’s inhabitants.
In the movement of milk from cow to customer, there are many opportunities for contamination and for variation from standards. The inspections of the Public Health Service and of the state are of necessity sporadic and infrequent. Ordinance No. 961 enables the city to conduct more frequent inspections to insure the regular maintenance of strict health standards for its citizens. If, at some point, an additional licensing and inspection requirement does no more than impose a financial burden so heavy as to limit competition without appreciably safeguarding the health of a city’s inhabitants, that case is not now before us.
Defendant’s last argument — that the ordinance is both a regulatory and revenue measure, while purporting to be only a regulatory measure — has been considered above and is found to be without merit. (State, ex rel., v. Ross, supra.)
It follows that the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.;
This is an action in ejectment wherein plaintiffs seek to eject defendants from a small tract of land occupied by the defendants’ garage. The parties waived' a jury. Trial was had to the court and judgment rendered against the plaintiffs for costs, whereupon appeal was duly perfected to this court.
The question presented is whether defendants acquired title to the land upon which the garage was situated by adverse possession.
The property of the appellants (plaintiffs) is located at 1712 Cleveland Avenue, Kansas City, Kansas. Adjacent to this property on the east at 1710 Cleveland is the property of the appellees (defendants). These properties face the street to the south.
In May, 1925, Frank Dimsdale and his wife, Myrtle Dimsdale, purchased the property at 1710 Cleveland and lived there until approximately August, 1954, when they sold the property to the defendants. In May, 1944, the plaintiffs purchased the property at 1712 Cleveland on an option contract. On the 6th day of September, 1951, the plaintiffs completed payments on their contract and received a warranty deed for the property. The plaintiffs have had possession of their property since the year 1944, and have paid taxes thereon since that time.
The only survey introduced in evidence was made at plaintiffs’ request on the 25th day of.April, 1955, and this action was filed on May 2, 1955. This survey, admitted to be correct, disclosed that the garage at the northwest corner of defendants’ property encroached upon the land covered by plaintiffs’ deed by a distance of 1.13 feet at the front and 1.6 feet at the back. The garage is 18.2 feet in length and the portion described has been occupying the property claimed by the plaintiffs since the year 1925. The foregoing facts are not controverted by the parties. Therefore, the question of possession by the defendants , and their predecessors in title for more than 29 years prior to filing this action is admitted.
This court has held that the location of a “true line” by a survey does not determine title to real estate, the ownership of which is claimed by adverse possession. (Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; and Wagner v. Thompson, 163 Kan. 662, 186 P. 2d 278.)
In an ejectment action, such as this, a general denial by way of answer puts the case at issue and the defendants are entitled to prove any fact that will sustain their own title or defeat that claimed by the plaintiffs. (Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784.) The defendants’ defense, among other things, is an assertion of adverse possession for more than 15 years.
The plaintiffs contend that possession alone is not sufficient to confer ownership but that the possession must be hostile, adverse, notorious, continuous and exclusive for a period exceeding 15 years, and title by adverse possession cannot be obtained where property is occupied under a mistaken belief ás to the true boundary line where there is no evidenced intention to hold beyond the true line. (Citing: Simpson v. Goering, 161 Kan. 558, 170 P. 2d 831; and Wilson v. Pum Ze, 167 Kan. 31, 204 P. 2d 723.) This statement clearly indicates the issue between the parties to this appeal.
The question of adverse possession has been before this court many times and the law has become rather well settled. Where there is a doubt as to whether the occupant of land claims adversely, under claim of right, so as to acquire title by adverse possession, it is a question of fact to be determined by the trial court upon all the evidence presented. On appeal to this court, findings of fact will not be disturbed if supported by substantial competent evidence, and in a determination of that question this court does not weigh the evidence but is concerned only with whether it supports the findings made by the trial court. (Tucker v. Hankey, supra; and Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004.)
This court has recognized that under certain circumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts its duty is to decide for itself what the facts establish, substantially as it would in an original case. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; In re Estate of Besse, 163 Kan. 413, 183 P. 2d 414; and White v. Turner, 164 Kan. 659, 192 P. 2d 200.)
The testimony of Mr. and Mrs. Dimsdale in the trial court was in the form of depositions. All other witnesses were present and testified in person. It is urged that this court apply the foregoing rule in reviewing the decision of the trial court, that is, to treat the case as if it were an original case. This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form (White v. Turner, supra); where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form (In re Estate of Kemper, supra); but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others (Bolin v. Johnson County Nat'l Bank, 160 Kan. 61, 159 P. 2d 477 [deposition testimony]; Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, No. 40,871, decided April 12, 1958 [stipulated testimony]; and see, also, Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180).
The circumstances in the present case do not call for an application of the rule urged by plaintiffs, where all of the evidence is in written form. The ordinary rule, giving credence where the trial court gave credence, as in Tucker v. Hankey, supra, and Truck-Trailer Supply Co. Inc. v. Farmer, supra, must control this decision. All of the plaintiffs’ witnesses testified in person and all of the defendants’ witnesses except Mr. and Mrs. Dimsdale testified in person. The deposition testimony of the Dimsdales was corroborated in many respects by one of the defendants’ witnesses, and the testimony of the plaintiff, Otto Boese, insofar as the issue in this case is concerned, was contradictory to the plaintiffs’ evidence. Should the rule propounded by plaintiffs apply, a reversal would require this court to give credence to the testimony of Otto Boese, when as a matter of fact it is apparent that the trial court rejected his testimony. The trial court had the opportunity to observe each of the witnesses who testified in person and familiarize himself with their demeanor on the witness stand, their interest in the controversy, and the greed and avarice manifested by each.
Under these circumstances plaintiffs’ specification that the trial court erred in believing the evidence contained in the depositions of Frank and Myrtle Dimsdale is without merit.
Whether the trial court erred in ruling that the evidence of the defendants was sufficient to establish adverse possession requires a review of the evidence. The record, as abstracted, before this court is silent as to whether the trial court made findings of fact and conclusions of law. We have before us only the judgment and what inheres in it. The judgment for the defendants indicates a general finding in their favor. It is settled that a general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced. Further, a general finding by the trial court raises a presumption that it found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, 181 Kan. 154, 309 P. 2d 409, and cases cited therein.)
Our review of the evidence will be made to determine whether a finding of adverse possession is supported by substantial competent evidence. It is the contention of the plaintiffs that the substance of the Dimsdales’ deposition testimony discloses that title was claimed under a mistaken belief as to the location of the true boundary line, and that by reason thereof title was not acquired by adverse possession.
Mr. Dimsdale testified that the garage on the property was used for his car, tools, lawnmower and other property. He testified that no one else had access to the garage except his family; that the garage had a concrete floor and the west wall was concrete for about 2 feet in height and was frame thereabove; that he painted the garage every two or three years, made repairs to the garage; that he enlarged it in the year, 1940, by extending its length, and that the garage was listed for taxation and he paid the taxes thereon from 1925 until the time he left; that he had the garage insured against loss or damage as his property. That through the years he had pointed out to the neighbors that he claimed ownership to a point about 2 feet west of his garage where stakes were located, and that he cut the grass on his land west of the garage until the plaintiffs in 1954 built a garage on their land so close that he could not get between the two buildings. He testified that the garage was located in that position when he bought the property and the garage was never torn down or rebuilt and that he never moved the garage, and it stayed exactly where it was from 1925, until he sold 29 years later. The testimony of Mrs. Dimsdale was to the same effect, and that she sometimes assisted him in painting and maintaining the garage.
The deposition testimony of the Dimsdales was corroborated by a neighbor lady who lived adjacent to and north of the properties in question since 1932. She testified as to Mr. Dimsdale painting, repairing and performing numerous acts of ownership over the garage. She also observed that Mr. Dimsdale- asserted ownership over the narrow strip of land to the west of the garage by mowing the grass on it.
The physical characteristics of the properties were viewed by the trial judge before he made his decision in this case. The physical facts disclosed that the plaintiffs’ property on the west was higher in elevation than the defendants’ property and that a retaining wall of concrete had been constructed between the two properties. This retaining wall was described by the plaintiff, Otto Boese, as the driveway wall. He further testified that the east side of his concrete driveway ran from a point On Cleveland Avenue approximately where the survey shows the “true line” to be thence north and at a slight angle to the west to the southeast corner of his garage. This garage constructed by Otto Boese in 1954 on the east side is only 10 inches from the west wall of the defendants’ garage. This means that the retaining wall at the point of the defendants’ garage passes approximately 2 feet to the west of the' “true line” indicated by the survey.
It is readily apparent from the record as abstracted that there is not a single word of testimony in the depositions of Mr. and Mrs. Dimsdale that title was claimed under a mistaken belief as to the true boundary line.
In the trial of an action such as this it devolves upon the defendants claiming title by adverse possession to clearly make out their claim. Title by adverse possession must be established by clear and positive proof. It cannot be made out by inference. Every presumption is in subordination to the rightful owner. (Finn v. Alexander, 102 Kan. 607, 171 Pac. 602.) It is thus presumed that when the defendants’ predecessors entered into possession under their deed, they claimed only the title given by their deed. (Edwards v. Fleming, supra.) But these are presumptions only and may be overcome by proof. (Kansas Power b Light Co. v. Waters, 176 Kan. 660, 272 P. 2d 1100.)
The real test as to whether or not the possession of real estate beyond the true boundary line will be held adverse is the intention with which the party takes and holds possession. It is not merely the existence of a mistake but the presence or absence of the requisite intention to claim title that fixes the character of the entry and determines whether the possession is adverse. (Schlender v. Maretoli, 140 Kan. 533, 535, 37 P. 2d 993; and Tucker v. Hankey, supra.) The intent with which the occupant has held possession is to be determined from all the surrounding circumstances and especially from the acts of the possessor. His intention need not have been manifested by words of mouth. The acts done must be such as to give unequivocal notice of the claim to the land adverse to the claims of all others and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken. (Tucker v. Hankey, supra; and Truck-Trailer Supply Co. Inc. v. Farmer, supra.)
The defendant, Harry Lyle Crane, testified that he purchased the property at 1710 Cleveland on July 23, 1954, and two days after receiving his deed to the property Otto Boese came to his office and talked to him. When Boese told him about the location of the garage, Crane informed Boese that he did not know anything about it and would discuss the matter after he moved in. The defendant, Harry Lyle Crane, denied that he had made statements which the plaintiff, Otto Boese, attributed to him in his testimony in chief concerning his claim of ownership to the property and testified at some length concerning the difficulty he had had with Mr. Boese.
Mr. Crane stated that he was claiming the property that was described in his deed, the property that belonged to Dimsdale— the property that he bought from Mr. Dimsdale. After repeating the foregoing claim in substantially the same manner several times on cross examination, his deed was admitted into evidence, although not set forth, in the abstract. He was then asked on cross examination:
“Q. (By Mr. Braly) All right, do you claim anything else, sir, other than what is in this warranty deed?
“A. No, sir.”
It is contended that this is an admission by the defendant, Mr. Crane, that claim is made only to the "true line” shown by the survey, and by reason thereof title by adverse possession has not been acquired. This argument has no merit for two reasons: First, the abstract has not set forth the deed in question and we do not know what property is described therein. Further, there is no testimony as to what property is described in the deed. Error must be affirmatively shown. The deed presumably contained the usual language that the grantee was to have and to hold all and singular the tenements, hereditaments and appurtenances belonging to the property conveyed. If this be true, then the defendants took title to the garage and the land upon which it was situated. (Kansas Power & Light Co. v. Waters, supra.) Second, the facts are that the defendants’ predecessors in title did take possession of the garage and openly used it for their own use and to the exclusion of all others from 1925 on. It is admitted that the plaintiffs had no interest in the adjoining property until 1944, at which time they entered into a contract to purchase. It was not until 1951 that they received a deed to their property. Therefore, the statute of limitations had run in favor of the defendants’ predecessors in title, the Dimsdales, whose title had ripened by adverse possession to the small tract in question several years before the plaintiffs had any interest in or about the abutting property. (Kansas Power & Light Co. v. Waters, supra.)
It is argued that if the Dimsdales claimed ownership to property beyond the survey they would have conveyed this strip of land to the defendants by their deed. This deed is not set forth in the abstract and it is not disclosed what property the Dimsdales conveyed. The only survey offered in evidence in this case was not made until April 25, 1955, a few days prior to the filing of the petition in this case. The defendants’ predecessors in title knew nothing about this survey, and since it was not in existence until a few days before the filing of this lawsuit it could not have played a part in any assumed mistake as to the occupancy of the land in question. Furthermore, it has been held that no páper evidence of any transfer of possession held under a claim of adverse possession is necessary, and that when possession of real estate is actual it may be commenced in parol without deed or writing and may be transferred and passed from one occupant to another by a parol bargain and sale accompanied by delivery. (Manufacturing Co. v. Crawford, 84 Kan. 203, 114 Pac. 240; Tucker v. Hankey, supra; and Truck-Trailer Supply Co. Inc. v. Farmer, supra.)
A case almost identical to the instant case in material respects is Kansas Power & Light Co. v. Waters, supra, where adverse possession was commenced in 1924 and was completed insofar as the statute of limitations was concerned in 1939, and no question was raised by the adjoining owner or his predecessor in title until 1948.
Plaintiffs specified as error the exclusion of certain evidence. After Otto Boese had testified concerning the location of a new garage which he was about to construct on his property next to the garage in question on the defendants’ property, he quoted Mr. Dims-dale as saying: “Don’t forget. I have got 36 feet of ground on my deed, That’s what I want.” This testimony was first stricken by the court on objection as not responsive, but was later brought in and objected to as hearsay, after which the court stated: “Well, the Court understands that this conversation would be hearsay evidence.” It is not apparent from this statement whether the testimony was rejected or received.
Declarations made by a person claiming title by adverse possession, while he was in possession of the property, serve to show the character of the right he was asserting and are admissible as verbal parts of his act of occupation. (Liebheit v. Enright, 77 Kan. 321, 94 Pac. 203.) Such declarations even when self-serving are admitted in evidence if part of the res gestae. (Gordon v. Munn, 87 Kan. 624, 636, 125 Pac. 1.)
The rule requiring the exclusion of hearsay testimony is not applicable where verbal acts are a part of the res gestae. Under the heading of res gestae it is said in VI Wigmore, Evidence, Third Edition, § 1778, as follows:
“Accordingly, it has never been doubted that all declarations by the occupant, importing a claim, of title in himself, are admissible as verbal parts of his act of occupation, serving to give it an adverse color; while his declarations of disclaim, conceding another’s title, are equally receivable as giving it the contrary color. Such declarations of claim are in no sense testimony to the deed or other source of title that may be thus asserted; and in that aspect they would clearly violate the Hearsay rule. They are merely verbal parts going to make up the whole act of occupation, and are not given any testimonial force as credible assertions:
“The limitations of this doctrine must, however, be observed. It assumes that adverse possession is in some way material under the issues of the case (forcible entry, prescriptive title, or otherwise), and that the declarations were made when in possession, and that they are not offered except as coloring the occupation.” (pp. 205, 206.)
The following is stated in 1 Am. Jur., Adverse Possession, § 240, p. 926:
“It is generally recognized that evidence of the acts and declarations of the claimant, or his predecessors in possession, during the statutory period, is admissible to show the nature of his possession. . . . Furthermore, the acts and declarations of the claimant or his predecessors in possession have been held admissible in evidence in some instances, even after the lapse of the statutory period, to show that the possession was or was not adverse.” (Emphasis added.)
(See, also, annotation in 97 A. L. R. 103.)
The statement of Mr. Dimsdale is admissible for another reason —as an exception to the hearsay rule. The statement attributed to him is a declaration against interest. That would be true here because the declaration was made while Dimsdale, one of the defendants’ vendors, had possession of the property in question. (Kitchell v. Hodgen, 78 Kan. 551, 97 Pac. 369.) This would not be true if the statements really were not against interest, or if they were merely narrations of past events to contradict another story.
In the instant case, however, it appears that in the rebuttal testimony of Otto Boese, as abstracted, the substance of the foregoing statement attributed to Mr. Dimsdale was admitted in evidence without objection. The defect, if any, has thus been cured.
Plaintiffs specify that it was error to exclude the testimony of Albert Catón, who is alleged to have been present and overheard the conversation between Otto Boese and Mr. Dimsdale touching upon the foregoing statement. At no place does the record, as abstracted, disclose what the testimony of Albert Catón would have been concerning this conversation which he is alleged to have overheard. No proffer of his testimony was made during the trial of the case, nor does the abstract disclose that a proffer was made on the motion for a new trial. It further appears from the record, as abstracted, that Albert Catón was permitted as a rebuttal witness to testify to the full extent of his knowledge concerning these matters without objection. Under these circumstances the appellants are in no position to complain of error.
Having concluded that no reversible error was committed by the trial court in the exclusion of evidence, the case resolves into one in which the trial court, after hearing all the evidence, found in favor of the defendants on every controverted question of fact. Even though the record discloses evidence which would support a contrary finding, nevertheless, the finding by the trial court that the defendants acquired title by adverse possession was based on competent substantial evidence and will not be disturbed on appeal. (In re Estate of Guest, 182 Kan. 760, 324 P. 2d 184, No. 40,872, decided April 12, 1958; and Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.) By both acts and words the intention of the Dims-dales to claim adversely was manifested. The evidence was competent to show that the defendants and their predecessors in title, the Dimsdales, exercised continuous, open, notorious, exclusive and adverse possession of the property in question for more than 29 years at the time the petition was filed. The Dimsdales had repeatedly expressed their intention by words to various persons, who from time to time were the owners of the property to the west, that they claimed to a point west of their garage indicated by stakes. The conduct of the plaintiffs in building the retaining wall between the properties, which recognized defendants’ ownership of all the property upon which the garage was situated, convincingly indicated that the plaintiffs had no intent contrary to the acts, conduct and intent of the Dimsdales established over a long period of time. The visual inspection of the property made by the trial court revealed two clearly defined ownerships and occupancies by the respective properties, and the plaintiffs lived in the property adjoining the Dimsdales for 10 years without bringing an action against the Dimsdales.
In view of what has heretofore been said the trial court did not err in overruling plaintiffs’ demurrer to the defendants’ evidence.
The appellants having failed to make it affirmatively appear that reversible error has been committed, the judgment of the trial court is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant was tried on an information charging him with the crime of murder in the second degree (G. S. 1949, 21-402). From a conviction of manslaughter in the second degree (G. S. 1949, 21-411), he appeals.
A brief statement of the facts follows: On October 1, 1956, at approximately 10:30 p. m., defendant, Emmitt Williams (appellant), and his friend Saunders were arrested for creating a disturbance in a liquor store and were placed in the “bull pen” of the police station with a number of other prisoners. Saunders was so unmanageable that he was later put in a single cell. Defendant discussed with Saunders the prospect of taking over the “bull pen.” Becoming combative, defendant struck and kicked two other prisoners.
The deceased, Master Sergeant Charles J. Nower, was picked up by police officers at a city bar, where he had been creating a disturbance. Being unruly, his hands were handcuffed behind his back and, about 11:30 that same evening, he was taken to the police station, where he was placed in the “bull pen” along with defendant and other prisoners. Testimony revealed that no one saw any marks of violence on Nower at the time of his arrest and his in carceration in the “bull pen”; that he was drunk and belligerent, as was defendant.
Subsequently, a fight ensued between deceased and defendant, who struck Nower with his fist. Nower, still handcuffed, became a target for defendant, who struck and kicked the handcuffed Nower at will. The fight ended with Nower knocked into the shower stall. The record discloses that defendant not only struck Nower several times with his fists, but also kicked him after knocking him down and into the shower stall. Defendant testified that he struck Nower five or ten times and that after the last blow Nower “didn’t come back no more.” He further testified that after his fight with Nower there was blood on his clothes and that he remembered saying, after learning of Nower’s death, “Why did I hit him so hard?”
Defendant was released from the jail about 12:30 a. m., on October 2, and about 1:10 a. m. Nower was found dead in the shower stall with blood on his face and chest. An autopsy was performed and “the death certificate showed the condition directly leading to death as contusion left frontal pole of the brain and that the antecedent cause was due to multiple abrasions of the face.” Medical testimony substantiated the mentioned conclusion.
On October 2 a complaint was filed in the county court and a warrant was issued charging defendant with murder in the first degree, in that on October 2, 1956, he did then and there unlawfully, wilfully and feloniously and with deliberation and premeditation kill one Charles J. Nower by striking the said Charles J. Nower with his fists or other unknown objects contrary to the statute. On October 3 the defendant appeared in person and was arraigned upon the charge contained in the complaint and warrant. He waived a preliminary hearing and was properly bound over to the district court for trial. Later, an information was filed in the district court charging defendant with murder in the second degree, in that defendant, on or about October 2, 1956, unlawfully, feloniously, purposely and maliciously but without premeditation and deliberation did kill one Charles J. Nower by striking the said Charles J. Nower with his fists and feet contrary to the statute. After the information charging murder in the second degree was filed, defendant objected to going to trial on the ground that he had had no preliminary hearing on that charge. At this point the district judge suspended the proceedings and, sitting as a magistrate under G. S. 1949, 62-601, gave defendant a preliminary hearing, to which de fendant made no objection but participated therein. At the conclusion thereof, the court, acting as magistrate, found that the crime of second degree murder had been committed and there was probable cause to believe defendant had committed said crime. The magistrate thereupon bound defendant over to the district court for trial on the charge of murder in the second degree. Subsequently, the county attorney filed a new information charging defendant with murder in the second degree.
It is a well-settled rule in this state that under our statute a judge of the district court is a magistrate authorized to conduct a preliminary examination. (G. S. 1949, 62-201, 62-601.) In Hancock v. Nye, 118 Kan. 384, 388, 234 Pac. 945, we stated:
“The state has supplied itself with many magistrates. (R. S. 62-201, 62-210, 62-601, 62-629.) Any one of those designated by the statute could have served as examining magistrate. Even a district judge himself is an examining magistrate ex officio, and while he has plenty to do without exercising that function, if a serious question is unexpectedly raised at nisi prius whether an accused has actually had a preliminary examination touching the specific offense for which he is on trial, it does not imperatively follow that the public expense for per diem and mileage of jurors and witnesses convened for his trial must all go for naught. In such a dilemma the district judge with propriety may suspend proceedings at nisi prius for an hour or two and give the accused a preliminary examination himself, and where no prejudice to accused or real justification for a continuance is apparent, the information may be refiled and the regular trial recommenced and proceeded with without delay. These observations are appended here as a reminder that in this state our criminal code for the administration of justice is vastly more expeditious and efficient than we lawyers and judges are always mindful to give it credit for. (See The State v. Keehn, 85 Kan. 765, 118 Pac. 851; The State v. Fleeman, 102 Kan. 670, 677, 171 Pac. 618.)”
(See also State v. McCombs, 164 Kan. 334, 336, 188 P. 2d 922.)
Defendant contends that the district judge sitting as the magistrate was without jurisdiction for the reason that no new complaint charging defendant with second degree murder was filed. There is no merit in this contention. No new complaint was necessary, as the defendant was in custody. In State v. Fleeman, supra, 675, it is stated:
“The writer of the opinion in the case of Redmond v. The State, 12 Kan. 172, ventured the assertion that when a person is arrested for one crime, and on preliminary examination is bound over for another, a new complaint ought to be filed, but said the statute does not require it. The reason the statute does not require a new complaint is that the accused is already in custody, and the complaint has no function to perform except to furnish the basis for a warrant. For forty-five years the legislature has ignored the suggestion, and it may now be regarded, not only as obiter, but as defunct obiter. In this instance the county attorney filed a new complaint and had a new warrant issued. They served no purpose whatever, except to afford the defendant opportunity to multiply objections to the regularity of the preliminary procedure.”
In the instant case, it is apparent, however, that the court treated the first information filed as a complaint charging second degree murder. The preliminary hearing was had without objection on the part of defendant. He participated in that hearing; and after he was bound over to the district court for trial, a new information, charging him with murder in the second degree, was filed. Subsequently, defendant announced he was ready for trial, waived formal arraignment and entered a plea of not guilty. The cause then proceeded to trial.
It is defendant’s next contention that the trial court erred in overruling his challenge for cause of prospective juror Greenawalt. Juror Greenawalt on his voir dire examination testified, when examined by counsel, that he had read and heard of the case but had formed no definite opinion one way or another regarding the guilt or innocence of defendant; that there might be some doubt in his mind either way; and that his opinion was not so deeply rooted but that evidence could change it. He further stated that he could lay aside what he had heard and what opinion he had made and could decide the case wholly upon the evidence to be presented.
The question of whether a juror is disqualified because he has formed or expressed an opinion on the issue must be decided on the facts in the particular case. It is an issue of fact that the trial court must determine. (G. S. 1949, 62-1410.) The trial court’s finding on such a question will not be disturbed unless it appears there has been an abuse of discretion. The rule enunciated in State v. Hooper, 140 Kan. 481, 37 P. 2d 52, and reiterated in State v. Springer, 172 Kan. 239, 242, 239 P. 2d 944, reads:
“The determination of the question whether a prospective juror is qualified to sit in a case is a trial of that question to the court. (R. S. 62-1410). The trial court’s decision on that question will not be disturbed on appeal unless disqualification appears as a matter of law, or it is disclosed that there has been an abuse of the court’s discretion. (State v. Stewart, 85 Kan. 404, 116 Pac. 489.) It is the mind of the court which must be satisfied that the challenged juror is free from bias and prejudice.’ (Morton v. The State, 1 Kan. 468, 472.) (See, also, State v. Molz, 91 Kan. 901, 139 Pac. 376; State v. Mullins, 95 Kan. 280, syl. ¶ 6, 147 Pac. 828; State v. Tucker, 137 Kan. 84, 91, 19 P. 2d 346.)”
We further stated that it is difficult to search the mind of a juror and ascertain if he has an opinion or merely a fleeting impression. This business of obtaining a qualified juror is a tedious one at best. We will not hold that in such a case the trial court abused its discretion, unless it clearly so appears; and defendant has not made it so appear.
Moreover, it is not questioned that the defendant did not use all his peremptory challenges. The rule is stated in 24 C. J. S. Criminal Law § 1900 b. (pp. 888, 889):
“Error of the court in overruling challenges for cause is not prejudicial where at the time of the completion of the jury accused had not exhausted his peremptory challenges. This is so both in cases where the juror was excluded on peremptory challenge and where he served on the jury, because of accused’s failure to avail himself of his right to a peremptory challenge. Nor can accused complain of the overruling of a challenge for cause, where it does not appear that he challenged the juror peremptorily . . .”
In the present case, defendant cannot now be heard to complain of the court’s overruling his challenge for cause when he had an opportunity to challenge the juror peremptorily, and failed to do so.
Defendant next contends that the court erred in overruling his motion to strike certain remarks from the county attorney’s opening statement to the jury. We have examined the record and are unable to find any statement made by the county attorney which was not later supported by the evidence. We find no prejudicial error in this respect.
It is next contended by defendant that the court erred in overruling his motion for discharge at the close of the state’s evidence. He predicated this motion on the ground that the evidence was insufficient to warrant submitting the case to a jury. No useful purpose would be gained by reiterating the voluminous evidence contained in the record. After a careful examination, we find ample evidence to sustain the charge and the lesser included offenses thereunder. (See State v. Dill, 182 Kan. 174, 175, 319 P. 2d 172; and cases cited therein.)
Defendant further contends that the court misled and confused the jury by instructing on murder in the first degree. A review of the record does not disclose that the court instructed on the crime of murder in the first degree. The court defined certain words such as “malice” — both “express” and “implied” — , “deliberate,” and “premeditate.” Defendant does not contend that the definitions are inherently wrong, but asserts that they should not have been given. We think it clear that the definitions were given to clarify the meaning of, and the distinction between, murder in the second degree and manslaughter. All of the mentioned terms are included in the information and in the statute upon which the prosecution was founded. Even though the court defines terms which may not be involved in the crime charged or upon which conviction ensues, if the definitions thereof serve a purpose, such as helping the jury to understand the distinction between murder and manslaughter or the nature of the crime with which they are dealing, they are proper. Also, if the definitions are abstractly correct, a very definite and specific showing of prejudice must be made in order to render the instruction reversible error. (State v. Bradford, 169 Kan. 89, 91, 216 P. 2d 1020.)
Defendant contends next that the court erred in instructing the jury it could find the defendant guilty of manslaughter in the second degree. It is a well-established rule in this state that in a prosecution for homicide it is the court’s duty to instruct not only on the offense charged but on the lesser offenses of which the accused might be found guilty upon the information and upon the evidence adduced, even though no request for such an instruction on such lesser offenses is made. (State v. Smith, 161 Kan. 230, 236, 167 P. 2d 594; State v. Severns, 158 Kan. 453, 458, 148 P. 2d 488; State v. Gloyd, 148 Kan. 706, 84 P. 2d 966.)
Manslaughter is one of the crimes arising from homicide, which is the killing of a human being. Homicide is manslaughter in the second degree (G. S. 1949, 21-411) when it is committed without a design to effect death, in the heat of passion, but in a cruel and unusual manner.
Defendant contends that the evidence did not justify the court’s instructions on second degree manslaughter for the reason that the. manner in which the injuries causing death were inflicted was not cruel and unusual. We held in State v. Palmer, 173 Kan. 560, 567, 251 P. 2d 225, that where the defendant was charged in an information with the crime of murder in the first degree for shooting, and killing one Rradley, it was error for the court not to instruct on second degree manslaughter under the aforementioned statute. To the same effect, see State v. Clark, 69 Kan. 576, 584, 77 Pac. 287. The record in the instant case discloses ample evidence to justify the court’s instructing on manslaughter in the second degree. The manner of the killing is an element of the offense and is a question of fact for determination by a jury. The jury did decide that the manner of the killing was both cruel and unusual. In this state homicides are uncommon and it is not easy to define the usual manner in which unlawful killings are committed. In almost every case it must necessarily be a question for the jury. In this day of a more refined society, we cannot say that the treatment given deceased by the defendant was not cruel and unusual. Such killings rarely happen. Beating and kicking a man to death while he is in a helpless condition, with his hands handcuffed behind him, unable to defend himself, cannot be declared as a matter of law in this state to be neither cruel nor unusual.
It is further argued by defendant that the court erred in failing to give defendant’s requested instruction on self-defense and his instruction relating to the cause of death. The record reveals that the trial court sufficiently covered both of defendant’s requests and no error is made to affirmatively appear.
A review of the entire record reveals that defendant was granted a fair and impartial trial and was well represented by counsel at every stage of the proceedings. The record does not disclose any matter even approaching reversible error. The judgment is therefore affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to obtain a construction of the will of August Ziebell and to determine the rights of plaintiffs and defendants in the property owned by him at his death.
On August 3, 1917, August Ziebell had six living children&emdash;five daughters, Amelia, the plaintiff, Hilma, Alma, Minnie and Ellen, and one son, August C. Ziebell. On that date he conveyed a tract of land to Hilma, another to Alma, and still another to his son, August C. Ziebell. Two days later he executed a will (not the one in question) devising to his daughters, Ellen Carlson, Minnie Larson and Amelia Silverman, a tract of real estate, share and share alike. He devised to his son, August C., other tracts of land, and also gave him his farming implements and all his personal property, charged, however, with the payment of his funeral expenses, including doctor’s bill, nurse’s bill, and all other expenses incident to his last sickness. The will contained a provision that:
“All the rest, residue and remainder of my property I give and devise to my children, namely: Ellen Carlson, Minnie Larson, Amelia Silverman, August C. Ziebell, Alma Ziebell, and Hilma Ziebell, share and share alike.”
He appointed and designated his son, August C. Ziebell, and his daughter, Alma Ziebell, executors of the will and expressed the wish that they should do so without compensation and without bond. The material facts to the controversy following the making of the deeds and the execution of the will mentioned have been found by the trial court, and are as follows:
“5. After the making of the conveyances mentioned in finding No. 2 and of the will dated July 5, 1917, and in the month of August, 1918, said August Ziebell and his daughter, Amelia, the plaintiff herein, became alienated and estranged from each other on account of a slip in conduct on the part of said Amelia, while unmarried and living in Denver, which resulted in the birth to her of a son, the same being the defendant Todie McCormick, now aged about 15 years. The boy Todie was about 5 years of age and being eared for by his aunt, Minnie Larson, one of the defendants herein, when he first became known to said August Ziebell. When said August Ziebell first saw the boy he asked said Minnie whose child he was and was informed that he was Amelia’s child. Two or three days thereafter said August Ziebell made and published the will in question, which is in words and figures as follows, to wit:
“ ‘LAST WILL AND TESTAMENT OF AUGUST ZIEBELL OF ASSABIA,
SALINE COUNTY, KANSAS.
“ T, August Ziebell, of Assaria, Saline county, Kansas, being of full age, of sound mind and disposing memory, do make, publish and declare this my last will and testament.
“ ‘First: I give, devise and bequeath to my daughters, Ellen Carlson, Minnie Larson and to my grandson, Todie McCormick, the following-described real estate, to wit: The south half of the northeast quarter of section thirty-one, township fourteen, range three, west of the sixth principal meridian, in Saline county, state of Kansas, share and share alike.
“ ‘Second: I give, devise and bequeath to my son, August C. Ziebell, the following real estate, to wit: The north half of the northeast quarter of section thirty-one, township fifteen, range two, west of the sixth principal meridian, and the northwest quarter of the northwest quarter of section thirty-two, township fifteen, range two, west of the sixth principal meridian, all in Saline county, Kansas.
“ ‘Third: I give and devise to my son, August C. Ziebell, all of my farming' implements and tools, including harness and tackle, buggies and wagons, provided it is my will, and I hereby direct that my said son, August C. Ziebell, shall be charged with and shall be required to pay all my funeral expenses, including doctor’s bills, nurse’s bills, and all expenses incident to my last sickness.
“ ‘Fourth: All of the rest, residue and remainder of my property I give and devise to my children, namely, Ellen Carlson, Minnie Larson, August C. Ziebell, Alma Ziebell and Hilma Ziebell, and to my grandson, Todie McCormick, share 'and share alike.
“ ‘Fifth. I hereby appoint and designate my son, August C. Ziebell, and son-in-law, Olof Larson, executors of this, my last will and testament, and it is my wish that they execute this, my last will, without compensation, and without bond, and I hereby revoke all former wills.
“ ‘In witness whereof, I have hereunto set my hand this 21st day of August, 1918. his
“ ‘August X Ziebell.
“ ‘Signed, published and declared by the said August Ziebell, testator, as and for his last will and testament, in the presence of us, we each signing the same as the witnesses of the said will in the presence of each other, and in the presence of the testator, at his special instance and request.
“ ‘R. A. Lovitt,
“ ‘John J. Eberhaedt.’
“6. The property conveyed by said August Ziebell to his daughters, Hilma and Alma, and the property conveyed and specifically devised to his son, August C., constituted the largest part of the property owned by said August Ziebell at the time he made said conveyances and the will dated August 21, 1918, said real estate being approximately of the value of $41,000. The 80 acres of land devised to Minnie Larson, Ellen Carlson and Todie McCormick is worth about $6,000. The said 80 acres constituted all the remainder of the real estate owned at that time by said August Ziebell.
“7. Not long after testator first saw the boy, Todie, he took him into his home and kept him there, treating him with great kindness and affection. He made a number of money presents to the boy. He opened a bank account for him in a bank at Assaria and from time to time added to the account so that the boy’s bank account at the time of the death of August Ziebell was between $1,600 and $1,700.
“8. In the month of December, 1918, and after the execution of the will dated August 21, 1918, August C., Hilma and Alma Ziebell died, unmarried and intestate, and leaving no children. None of them had made any conveyance of any of the said real estate conveyed to them by said August Ziebell, or any part thereof, or made any other disposition of the same or any part of their interest therein or-thereto.
“9. As time went on the relations between August Ziebell and the plaintiff became more friendly. Plaintiff, whose home was in Denver, Colo., visited her father about once -a year, the father paying all the traveling expenses of such visits. After the death of August C., Hilma and Alma, the rents and profits realized from the real estate owned by testator, including that which returned to him through the death of August C., Hilma and Alma, were divided among Ellen, Minnie, Amelia and Todie, Ellen and Minnie each receiving one-third of the same and Amelia and Todie each one-sixth.
“10. Soon after the death of August C., Hilma and Alma, the plaintiff received from her father a $100 liberty bond and war stamps aggregating $400 in value. She has also received the sum of $2,681.50 from the rents and profits of the real estate. Testator also gave plaintiff a number of Christmas presents during the last years of his life. Whenever said Ziebell gave any money or Liberty bonds to Amelia he also gave money and Liberty bonds to Minnie, Ellen and Todie. And to each of his said daughters on the occasion of her marriage, he gave a wedding present of $1,000.
“11. The value of all of the real estate owned by said August Ziebell at the time of his death was about $47,000. The value of said real estate in 1918, when the will in question was made, was about $65,000. Ziebell was also the owner of a considerable amount of personal property, the value of which has not been disclosed by the evidence.
“12. On several occasions after the death of August C., Hilma and Alma, said Ziebell, referring to the real estate he would leave at his death, made the statement: ‘The land will have to be sold; they will never agree how it shall be divided.’ ”
Based on these facts, the court announced the following conclusions of law:
“1. The changes in the conditions and circumstances of the testator, August Ziebell, after the making of the will dated August 21, 1918, did not operate as a revocation of said will. And said testator did not, at any time, by any act or statement, manifest his intention to revoke said will.
“2. Under the will of August Ziebell dated August 21, 1918, the devisees, Ellen Carlson, Minnie Larson and Todie McCormick, take, share and share alike, all the estate left by the said testator, August Ziebell.”
About six and one-half years after the last will was made August Ziebell died, at about the age of eighty-seven years. While the testator was advanced in years when the will under consideration was made, no question is raised as to his testamentary capacity, there is no charge of fraud or undue influence in the execution of the will, nor is any claim made that there was noncompliance with any of the formalities or statutory requirements essential to a valid will. The principal question advanced by the plaintiff relates to the disposition of what is called after-acquired property, which it is insisted did not pass under the residuary clause of the will. As already shown, three children to whom conveyances of land were made on July 3, 1917, died intestate, unmarried and without issue during the life of August Ziebell, and it is conceded that, his wife being dead, he inherited these lands and was the owner of the same at the time of his death. It will be observed that the only difference in the last will and the earlier one, which had been executed more than a year before, was the elimination of his daughter, Amelia, and the substitution of her son, Todie McCormick, who was born when Amelia was unmarried, and also the substitution of Olof Larson, the husband of Minnie, as executor in place of Alma. It will be seen that the residuary clause mentioned all the children except Amelia and substituted for her the grandson of the testator, Todie McCormick.
The controversy is between Amelia and her son, Todie, who was brought to the Ziebell home when he was about five years of age, and is now about sixteen years of age. Amelia insists that although she was left out of the will, it did not cover or operate to pass property acquired after the will was executed. Reference is made to a statutory provision which reads:
“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will, shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” (R. S. 22-257.)
It is contended that the statute does not pass after-acquired property regardless of the testator’s intention, but in effect says that such property shall not pass unless an intention to pass shall affirmatively appear. It is argued that the statute implies that such property only passes where the will itself shows clearly an intention of the testator to pass future-acquired property; that the will may or may not carry such subsequent property, and that the burden is on those claiming such intention to show that it exists as a fact. Plaintiff cites Wright v. Masters, 81 Ohio St. 804, in which the court, interpreting a like statute, said:
“The language of this statute clearly indicates its limitation, and shows it to have been the purpose of the legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will.” (p. 312.)
In that case there was no residuary clause disposing of all the residue of the testator’s property. Does the will involved here disclose an intent of the testator to pass after-acquired property clearly and sufficiently?
In the will the testator devises particular pieces of real estate to persons named and gives personal property to another and then states that “all the rest, residue and remainder of my property, I give and devise to my children and grandson (naming them), share and share alike.”
It is very manifest from the terms of the will that the testator did not intend that he should die intestate as to any of his property, however and whenever it may have been acquired. Aside from the presumption of law of an intention on the part of the testator not to die intestate as to any of his property, there is the residuary clause in the instrument containing language clear and comprehensive purporting to dispose of all the property owned by him when the will became effective. That clause expresses, we think, in unequivocal terms the intention of the testator to dispose of his entire property, whether acquired before or after the will was executed. His intention as expressed in the will must control. We have said:
“A canon of construction to which all other rules are subordinate is that the intention of the testator as gathered from all parts of the will is t'o be' given effect,” etc. (Brown v. Brown, 101 Kan. 335, 166 Pac. 499.)
Under the common law the testator could not devise real estate acquired after the will was made, but that rule was abrogated by the statute quoted, which declares that real and personal property acquired after the making of the will shall pass the same as that held or possessed when it was made where from the will it clearly appears to have been the intention of the testator. Of course, if the will shows an intention to restrict the gift to property less than the entire propery of the testator or only to property owned by him when the will was made, it should be given effect, but where a clause of the will declares a purpose to bequeath and devise all of the property of the testator, there can be no doubt of his intention that the will, which speaks from the testator’s death, covered all property owned by him at that time. The rule is not a new one in this state, and in Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566, where a will contained the statement that it bequeathed and devised all real estate and personal property of every description, wherever situate, and where the matter of after-acquired property was involved, it was held that the will manifestly indicated an intention to pass subsequently acquired real estate. In the opinion the effect of the statute was considered and among other things it was said:
“Besides this, a will, it was said, ‘speaks from the death of the testator.’ (Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25.) The testator makes his will in view of that circumstance. He understands that, until his decease, the will is ambulatory, and that he may buy and sell at pleasure, but that, being written in anticipation of that event, his language must necessarily be referable thereto. Hence the will must be so construed as to prevent intestacy with reference to any portion of the decedent’s estate, if that can reasonably be done.” Citing many cases, (p. 143.)
It was followed by the declaration:
“The conclusion seems irresistible that the devisor intended that he should not die intestate as to any item of his property, and hence that all the real estate he died seized of should be disposed of by the will.” (p. 144.)
In Johnson v. White, 76 Kan. 159, 90 Pac. 810, where the will contained a residuary clause, the same rule was applied. In Noel v. Noel, 109 Kan. 440, 199 Pac. 459, the will provided that the testator gave all of his property, both personal and real estate, to a certain beneficiary, and it was held that the will clearly manifested an intention to pass after-acquired property in the same manner as if held and possessed when the instrument was executed.
The question was considered at length in Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146, and after a discussion of the rule of the common law respecting the subject, consideration was given to the statute indicating a change of policy, holding that its effect was to abrogate the common-law rule. It was said:
“There is no policy in this state to keep any class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy. The rule that a lapsed devise, in a will with a residuary clause, was not disposed of and went to the heir, contravened the intention of the testator, compelled him to die intestate with reference to a portion of his property when he had indicated a contrary desire, and is not in harmony with the policy underlying our law. The result is, this court could not, if called on to do so, state a satisfactory reason for making a present-day distinction between the destination of a lapsed devise and of a lapsed legacy, in a will containing a residuary clause applicable to each.” (p. 329.)
The will itself, which is controlling, clearly and manifestly discloses an intention by the testator that all property owned by him, whether acquired before or after the execution of the instrument, should pass to the beneficiaries designated. That being the result there was no intestate estate and no lapsed or ineffectual bequests. The court, after considering the terms of the will as well as the oral testimony, correctly held that the plaintiff had no right, title or interest in any of the property owned by the testator at the time of his death.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to determine the priority of certain .orders for the payment of money drawn by Warren Swartley, operator of a combined harvester-thresher, in favor of three creditors of Swartley and drawn upon and acknowledged by E. E. Nelson, a wheat grower, for whom Swartley had undertaken to cut and thresh 500 acres during the harvest season of 1926. For this service Nelson was to pay Swartley $3 per acre and 5 cents per bushel for the yield above 25 bushels per acre.
On June 1,1926, Swartley gave C. C. Shepherd an order on Nelson for $565.
On June 4,1926, Swartley gave the J. I. Case Threshing Machine Company an order on Nelson for $1.50 per acre for whatever acreage he should cut and thresh under his contract with Nelson.
On June Í4, 1926, Swartley gave this plaintiff, L. Z. Morris, an order on Nelson for $600.
All these orders were accepted by Nelson, that of plaintiff being accepted on June 14; that of Shepherd two days later, June 16; and that of the threshing machine company on June 26 or 27, some ten days later than that of Shepherd. The threshing machine company’s order was assigned to O. L. Siler.
The order in favor of the plaintiff Morris and Nelson’s agreement to pay it according to its terms read:
“Mr. E. E. Nelson-.
June 14, 1926.
“You will please pay to Mr. L. Z. Morris for account on oil and gas and other fuel bill, which I now owe and may further need in the harvesting of the wheat of said E. E. Nelson, up to the amount of $600. This said $600 is to be paid first out of cutting bill under the contract for cutting of the wheat by Warren Swartley for the said E. E. Nelson. Warren Swartley.
[Acknowledgment.]
“I, E. E. Nelson, herein agree to pay Mr. L. Z. Morris $600 out of the cutting bill, as per above assignment. E. E. Nelson.”
“[June 14, 1926.]”
The order in favor of Shepherd and the terms of its acknowledgment read:
“Mr. E. E.'Nelson:
June 1, 1926.
• “You will please pay to C. C. Shepherd, or order, the sum of $565 out of the moneys due me when I have completed harvesting your wheat crop this year- Warren Swartley.”
[Acknowledgment.]
“Mr. C. C. Shepherd: “. . . June 16, ’26.
“I will acknowledge the above assignment in so far as possible for me to do so, and pay to you out of what cutting Warren Swartley does for me all that is not paid out of prior right or assignments ahead of yours.
“E. E. Nelson.”
The order in favor of the threshing machine company and the terms of its acceptance read:
“Garden City, June 4, 1926.
“For the purpose of obtaining an extension of credit with J. I. Case Threshing Machine Co. for a Case combine, it is understood that I am to do your harvesting-threshing for the season of 1926 at a price of $3 per acre and 5<f per bushel for all over 25 bushels per acre, in consideration of which you will please pay to J. I. Case Threshing Machine Co., or order, the amount of $1.50 per acre, as soon as the work is done. The work herein referred to is the harvesting and threshing of 500 acres of wheat on section-, township 23-31, county Finney, state Ks. Warren Swartley.”
“I accept the above order and agree to permit the above-named Warren Swartley to do the work herein referred to, and further agree to pay the amount due under this order as goon as the work is done.
[June 26 or 27, 1926.] “E. E. Nelson.”
At the trial no issue of fact was raised, and it was agreed that although Nelson did not acknowledge the orders of Shepherd and the threshing machine company until after he had acknowledged the order in favor of plaintiff, he did know that such orders had been issued to them before he acknowledged the order given by Swartley in favor of plaintiff. It was also agreed that in acknowledging the plaintiff’s order first Nelson had no intention to control the legal effect of the orders thus given; and that Nelson merely considered they did not amount to anything unless and until he did acknowledge them. It seems also to have been conceded that Morris knew of the outstanding but unacknowledged orders.in favor of Shepherd and the threshing machine company when it received the order given him by Swartley.
All these orders were issued by Swartley and acknowledged by Nelson before Swartley had cut and threshed any grain for Nelson. Swartley eventually cut about 246 acres, when the threshing machine company deprived him of the harvester-thresher, presumably for non-payment of the purchase price or other reason not here pertinent. Swartley’s services created an indebtedness on the part of Nelson for the sum of $738, less $26 due himself, and he turned the net balance of $712 into court, for plaintiff, Shepherd and Siler to fight for.
The trial court gave judgment in favor of plaintiff for the full amount of his bill, $502.64; and directed that the balance, $209.36, be paid to Shepherd.
This disposition of the fund, of course, left nothing for Siler, assignee of the thresher company, and both Shepherd and Siler appeal. They contend that their orders entitled them to precedence over plaintiff under the rule of law that an unqualified-assignment vests in the assignee title to the same extent as the assignor had at the date of its execution, and that such assignment is effective from its delivery whether the debtor accepts such order or not, and that their orders were first in time and therefore first in right. There is respectable support for such contention (5 C. J. 958), but that rule is not applicable to cases like the present where the orders to the rival creditors are for parts of the fund in the debtor’s hands. (Burnett v. Crandall et al., 63 Mo. 410; Thiel v. John Week Lumber Co., 137 Wis. 272; 129 A. S. R. 1064; 5 C. J. 925; 2 R. C. L. 618, 619.) It is said, however, that the right to refuse to recognize partial assignments of a debt is personal to the debtor (2 R. C. L. 619) which is also a logical qualification of the doctrine that a debtor, having the right tó pa3^ his debts in solido, has also the right to decline to serve as pro rata disbursing functionary for his creditors. In Mandeville v. Welch, 18 U. S. 277, 5 L. Ed. 87, it was said:
“The reason of this principle is plain. A creditor shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons.” (p. 286.)
Here Nelson the debtor — or prospective debtor — did exercise the privilege of refusing to grant unqualified recognition of the various orders drawn on him by Swartley. He gave but a qualified acceptance to the order in favor of Shepherd, and only with greater limitations did he obligate himself to the threshing machcine company. Furthermore, a critical examination of the text of Shepherd's and the threshing machine company’s orders discloses that what was as signed to Shepherd was $565 out of moneys to become due to Swartley when he had completed harvesting Nelson’s wheat.
Swartley never did complete the harvesting of the wheat, and, strictly speaking, the condition under which the Shepherd assignment was to operate never occurred. Moreover, appellants concede that these partial assignments of a debt are ineffective unless recognized by the debtor; but the recognition given by Nelson to the Shepherd assignment set out above is qualified and restricted by his prior obligation to honor the order given in favor of Morris. If this restricted recognition of the order in favor of Shepherd is not to be observed according to its terms, it is worthless for every purpose. The same observation is pertinent touching the order in favor of the threshing machine company for a partial assignment of the prospective fund to be created by Swartley’s labor in the service of Nelson. Nothing was to be due or acknowledged to be due until the 500 acres were cut and threshed. “As soon as the work is done,” ran the terms of the order’. Both the Shepherd and thresher machine company’s orders clearly contemplated the cutting of the entire acreage.
The order in favor of Morris was expressly to be paid first; and while Swartley, perhaps, could not create a preference in favor of Morris by the mere phraseology of the order itself, yet when it is taken into consideration that Morris’ claim had its inception in his supplying oil and gasoline to operate the harvester-thresher, and without his continuing to supply these essentials Swartley could not cut any wheat for Nelson and thus earn money to pay any of his creditors, there was a constraining and predominating equity in favor of Morris which the court did well to recognize in its disposition of this case. (Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852; Peden Iron & Steel Co. v. McKnight, [Tex. Civ. App.] 128 S. W. 156.)
There is, however, a simpler solution of this present question than the one just discussed. The relationship contemplated by Swartley and Nelson at the time the orders were given was essentially that of employee and employer. This court has decided that an employer is not bound to recognize and pay monthly installments out of his employee’s wage on an order given by the employee. In EmersonBrantingham Co. v. Lyons, 102 Kan. 733, 172 Pac. 513, it was said:
“A written'order by an employee to his employer to pay his creditor a sum of money out of the salary account of the employee does not create a liability against the employer and in favor of the creditor unless the employer agrees to honor the order or to make the payments.” (Syl. fi 3.)
To the same effect was C. B. & Q. R. R. Co. v. Provolt, 42 Colo. 103, 16 L. R. A., n. s., 587.
The judgment is affirmed.
Hopkins and Hutchison, JJ., not sitting. | [
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|
The opinion of the court was delivered by
Miller, J.:
This is an action for, damages for “wrongful life,” brought by a three-year-old boy against a physician, Robert Neil Schimke; the State of Kansas; the State Board of Regents; and the Kansas University Medical Center. The plaintiff, Andrew John Bruggeman, appeals from an order of the district court of Wyandotte County sustaining defendants’ motions to dismiss for fail ure to state a claim upon which relief can be granted under Kansas law, K.S.A. 60-212(b)(6).
The record in this case consists of the petition, the answers of the defendants, the motions to dismiss, and the court’s ruling thereon. There has been no discovery and there is nothing to indicate that any factual matters outside the pleadings were presented to or considered by the trial court.
The petition, in substance, alleges that in 1979 plaintiffs mother gave birth to a daughter, Amy, who was born with multiple congenital anomalies. Plaintiff s mother and father then sought genetic counseling at the University of Kansas Medical Center in regard to the risk of birth defects or hereditable impairments in future children. They were advised by the defendants that Amy’s condition was not due to a known chromosomal or measurable biochemical disorder. Defendants were negligent in so advising plaintiffs parents. The parents relied upon the advice and, but for the inadequate and negligent counseling, plaintiff would not have been born to experience the pain and suffering attributable to his genetic deformities. Plaintiff claims that as a result of defendants’ negligence plaintiff has been caused to suffer, and will suffer in the future, injuries, pain and mental anguish as a result of being born as an impaired person, and that he has incurred and will incur in the future extraordinary expenses for medical, surgical, nursing and hospital services.
The trial court, in a comprehensive memorandum, reviewed cases from other jurisdictions and current articles in legal and medical journals on the subject. There is no Kansas case directly in point. The court concluded that a geneticist who has been consulted on the question of possible hereditary or congenital defects occurring in a second child owes a duty to his patients, which duty extends to yet unborn children of the patients, to exercise reasonable care. Whether the duty exists, the court held, was a question of law which the court decided in the affirmative. Whether the defendants had breached that duty was a question of fact, but for the purpose of ruling upon the motion the court held the allegations of the petition were sufficient. On the issue of causation, however, the court observed that the infant plaintiff does not claim that the defendants caused his defects. His claim is that they caused his birth and his life, when they knew or should have known that he would be born with congenital defects. The court said:
“Being born is not a compensable injury. Being born with a defect is not compensable unless the defect is caused by another’s negligence. This plaintiff s claim is based on his being born with a defect, and that the defendants are negligent in not preventing his birth. There is no claim that defendants’ negligence caused his defect, only that the negligence caused his birth.
“The question of causation is one of fact, and under most circumstances, a question for the jury. Only where the causation question could not cause reasonable men to differ does it become a question of law.
“The court concludes that while the petition states a cause of action for the breach of a duty owed to this infant plaintiff, it fails to do so on causation and damages.
“While the averments establish for the purpose of the motion that defendants are negligent, there is no connection between that negligence and the plaintiff s defect. There is no right not to be born.
“Damages for the defect are not assessable against the defendants since their negligence is not the proximate cause of the damages, and damages for being born and achieving life itself are contrary to public policy.”
Our scope of review, where the trial court has sustained a motion to dismiss, is concisely defined in Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 620 P.2d 837 (1980):
“When a motion to dismiss under K.S.A. 60-212(fe)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the. well-pleaded facts of plaintiff s petition. The motion in such case may be treated as the modern equivalent of a demurrer.” Syl. ¶ 1..
“Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon-which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” Syl. ¶ 2.
“In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.” Syl. ¶ 3.
See also Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413-14, 479 P.2d 875 (1971).
The court also stated in Knight:
“It is not necessary to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, Syl. ¶ 3, 520 P.2d 1197 (1974).” 5 Kan. App. 2d at 475.
We turn now to the issue before us, whether an action for damages for “wrongful life” should be recognized in Kansas. There are three causes of action which should first be defined and distinguished. These are “wrongful pregnancy,” “wrongful birth,” and “wrongful life.” These are discussed and distinguished in the recent Colorado Court of Appeals case, Continental Cas. Co. v. Empire Cas. Co., 713 P.2d 384 (Colo. App. 1985), where the court says:
“At the outset, wrongful life must be distinguished from other birth-related claims with which it is often confused, namely ‘wrongful pregnancy,’ and ‘wrongful birth.’ Wrongful pregnancy refers to those cases where parents of a healthy child bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to an unwanted child. Wrongful birth claims are brought by parents who claim that they would have avoided conception or terminated the pregnancy had they been properly advised of the risks of birth defects to the potential child. These parents seek recovery for their expenses in caring for the deformed child, and for their own pain and suffering. Wrongful pregnancy actions typically involve a healthy, but unwanted child, whereas wrongful birth actions usually involve planned children who are born deformed. Both actions,however, are brought by the parents on their own behalf. Comment, ‘ “Wrongful Life”: The Right Not to be Born,' 54 Tul. L. Rev. 480 (1980).
“Wrongful life actions, on the other hand, are suits brought by the impaired child. The child alleges that but for the defendant doctor or health care providers’ negligent advice to, or treatment of, the parents, the child would not have been born. Comment, ‘ “Wrongful Life”: The Right Not To Be Born,’ supra. The essence of the child’s claim is that tire defendants wrongfully deprived the parents of information which would have prevented the child’s birth. Azzolino v. Dingfelder, 71 N. C. App. 289, 322 S.E.2d 567 (1984). In a wrongful life claim,
‘The child does not allege that the physician’s negligence caused the child's deformity. Rather, the claim is that the physician’s negligence — his failure to adequately inform the parents of the risk — has caused the birth of the deformed child. The child argues that but for the inadequate advice, it would not have been born to experience the pain and suffering attributable to the deformity.’ Comment, ‘ “Wrongful Life”: The Right Not To Be Born,’ supra.” 713 P.2d at 392.
Our recent case of Byrd v. Wesley Med. Center, 237 Kan. 215, 699 P.2d 459 (1985), was an action by the mother of a normal, healthy child alleging that her tubal ligation surgery performed at the Wesley Medical Center was negligently done. She later became pregnant and delivered a normal, healthy child. She sought damages, including the cost of rearing her child to ma jority. We held that under the public policy of this state a parent cannot be said to be damaged by the birth of a normal, healthy child and, thus, the plaintiff could not recover damages because of the birth of such a child. We affirmed the district court’s ruling denying recovery for the projected costs of rearing the unplanned child. The Byrd case fits into the definition of an action for “wrongful pregnancy.”
The case now before us fits neatly within the definition of an action for “wrongful life.” It is an action by the child alleging that, but for the negligence of the defendants in giving improper genetic counseling to his parents, he would not have been born to experience the pain and suffering attributable to his genetic deformities. His description of his claim parallels the definition of a wrongful life action set forth in the Continental Cas. Co. opinion and in the Tulane Law Review article quoted therein. The issue presented is one of first impression for this court.
The majority of American jurisdictions have refused to recognize an action for wrongful life. See Phillips v. United States, 508 F. Supp. 537 (D.S.C. 1980); Gildiner v. Thomas Jefferson Univ. Hospital, 451 F. Supp. 692 (E.D. Pa. 1978); Smith v. United States, 392 F. Supp. 654 (N.D. Ohio [applying Texas law] 1975); Elliott v. Brown, 361 So. 2d 546 (Ala. 1978); DiNatale v. Lieberman, 409 So. 2d 512 (Fla. Dist. App. 1982); Moores v. Lucas, 405 So. 2d 1022 (Fla. Dist. App. 1981); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Goldberg v. Ruskin, 128 Ill. App. 3d 1029, 471 N.E.2d 530 (1984); Strohmaier v. Ob and Gyn Assoc, 122 Mich.- App. 116, 332 N.W.2d 432 (1982), appeal denied 417 Mich. 1072 (1983); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Alquijay v. St. Luke’s-Roosevelt Hosp. Center, 63 N.Y.2d 978, 483 N.Y.S.2d 994, 473 N.E.2d 244 (1984); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Stewart v. Long Is. Coll. Hosp., 35 App. Div. 2d 531, 313 N.Y.S.2d 502 (1970), aff'd 30 N.Y.2d 695, 332 N.Y.S.2d 640 (1972); Rubin by Rubin v. Hamot Medical Center, 329 Pa. Super. 439, 478 A.2d 869 (1984); James G. v. Caserta, _W. Va. _, 332 S.E.2d 872 (1985); Dumer v. St. Michael’s Hospital, 69 Wis. 2d 766, 233 N.W.2d 372 (1975); Annot., 83 A.L.R.3d 15 (and 1985 Supp.)
The courts which follow the majority rule, and which have refused to recognize an action for wrongful life, have generally been reluctant to find that the child plaintiff has suffered a legally cognizable injury by being born impaired rather than not being born at all. The Idaho court in Blake v. Cruz, 108 Idaho 253, noted that the majority of states have refused to recognize the wrongful life action. The court then stated:
“This judicial reticence stems partially from the fact that the theory amounts to a repudiation of the value of human life. The contention of wrongful life plaintiffs is not that they should not have been born without defects, but rather, that they should not have been born at all. Gleitman [v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967)], 227 A.2d at 692. The essence of such claims is that the child’s very life is ‘wrongful.’ Berman v. Allan [, 80 N.J. 421, 404 A.2d 8 (1979)], 404 A.2d at 11.
“We also decline to adopt the doctrine which would recognize such a cause of action. Basic to our culture is the precept that life is precious. As a society, therefore, our laws have as their driving force the purpose of protecting, preserving and improving the quality of human existence. To recognize wrongful life as a tort would do violence to that purpose and is completely contradictory to the belief that life is precious. The fact that Dessie Blake will live in a severely disabled condition is unquestionably a tragedy; nevertheless, we agree with the New Jersey Supreme Court in that ‘life — whether experienced with or without a major physical handicap — is more precious than non-life.’ Berman, supra, at 404 A.2d at 12. Thus, because Dessie Blake has suffered no legally cognizable wrong by being born, she has no cause of action.” 108 Idaho at 259-60.
The Supreme Court of Alabama, in Elliott v. Brown, 361 So. 2d 546, expressed its rationale as follows:
“Fundamental to the recognition of such a cause of action is the notion that the defendant has violated some legal right of plaintiff s and as a result she has suffered injury. However, a legal right not to be born is alien to the public policy of this State to protect and preserve human life. The right of women in certain cases to have abortions does not alter the policy. . . .
“Upon what legal foundation is the court to determine that it is better not to have been born than to be born with deformities? If the court permitted this type cause of action, then what criteria would be used to determine the degree of deformity necessary to state a claim for relief? We decline to pronounce judgment in the imponderable area of nonexistence.” 361 So. 2d at 548.
The Court of Appeals of New York, in Becker v. Schwartz, 46 N.Y.2d 401, said:
“Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?” 46 N.Y.2d at 411.
Finally, in the most recent opinion on the subject, the North Carolina Supreme Court in Azzolino v. Dingfelder, 315 N.C. at 109, made this concise declaration:
“[W]e conclude that life, even life with severe defects, cannot be an injury in the legal sense.”
A second reason relied upon by those courts refusing to recognize a cause of action for wrongful life is the difficulty in measuring damages. In Nelson v. Krusen, 678 S.W.2d 918, 924 (Tex. 1984), the Supreme Court of Texas said:
“[I]n awarding damages the court must offset any special benefits to the plaintiff resulting from the negligence, see Restatement (Second) of Torts § 920 (1979), such a cause of action involves a weighing of life against non-life, a calculation that cannot rationally be made. See Dumer v. St. Michael’s Hospital, 233 N.W.2d at 376. As Chief Justice Weintraub said in the landmark case of Gleitman v. Cosgrove [49 N.J. 22, 227 A.2d 689 (1967)], ‘[Ultimately, the infant’s complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether this is so.’ 49 N.J. 22, 227 A.2d 689, 711 (1967) (concurring and dissenting).”
In the Becker case, the Court of Appeals of New York, at 46 N.Y.2d at 411-12, said:
“The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. (See Martin v. Dierck Equip. Co., 43 NY2d 583, 589.) Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. (See Smith v United States, 392 F Supp 654; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, aff'd 30 NY2d 695; Gleitman v Cosgrove, 49 NJ 22; Jacobs v Theimer, 519 SW2d 846 [Tex.]; Dumer v St. Michael’s Hosp., 69 Wis 2d 766.)”
Similarly, in Goldberg v. Ruskin, 128 Ill. App. 3d at 1035-36, the Illinois Court of Appeals stated:
“The primary purpose of tort law is to compensate plaintiffs for the injuries they have suffered wrongfully at the hands of others, and damages for negligence are ordinarily computed by comparing the condition plaintiff would have been in but for the tort with plaintiff s impaired condition as a result of the wrong. (Berman v. Allen (1979), 80 N.J. 421, 427, 404 A.2d 8, 11-12.) In a cause of action seeking recovery for wrongful life, the trier of fact would be required ‘to measure the difference in value between life in an impaired condition and “the utter void of nonexistence.” ’ (Berman v. Allen (1979), 80 N.J. 421, 427, 404 A.2d 8, 12.) Such a computation is ‘a task that is beyond mortals, whether judges or jurors.’ Harbeson v. Parke-Davis, Inc. (1983), 98 Wash. 2d 460, 482, 656 P.2d 483, 496.”
Four states have recognized an action for wrongful life. See Turpin v. Sortini, 31 Cal. 3d 220, 182 Cal. Rptr. 337, 643 P.2d 954 (1982); Continental Cas. Co. v. Empire Cas. Co., 713 P.2d 384 (Colo. App. 1985); Procanik by Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984); Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983). The most recent of those rulings, Continental Cas. Co., is not yet final, certiorari having been granted by the Colorado Supreme Court on January 13, 1986.
The leading case recognizing an action for wrongful life is Turpin v. Sortini. There, in considering earlier cases from other states in which recovery had been denied, the California court said:
“[Sjome courts have concluded that the plaintiff has suffered no legally cognizable injury on the ground that considerations of public policy dictate a conclusion that life — even with the most severe of impairments — is, as a 'matter of law, always preferable to nonlife. The decisions frequently suggest that a contrary conclusion would ‘disavow’ the sanctity and value of less-than-perfect human life. [Citations omitted.]” 31 Cal. 3d at 232.
However, the court went on to say:
“[I]t is hard to see how an award of damages to a severely handicapped or suffering child would ‘disavow’ the value of life or in any way suggest that the child is not entitled to the . . . rights and privileges accorded to all members of society.
“Moreover, while our society and our legal system unquestionably place the highest value on all human life, we do not think that it is accurate to suggest that this state’s public policy establishes — as a matter of law — that under all circumstances ‘impaired life’ is ‘preferable’ to ‘nonlife.’ ” 31 Cal. 3d at 233.
The Turpin court denied the child’s claim for pain, suffering, or other general damages, giving as its reason (1) the inability to determine in a rational or reasonable fashion whether the plaintiff has suffered an injury in being born impaired rather than not being born, and (2) it would be impossible to assess general damages in a fair, nonspeculative manner. These reasons, of course, closely resemble the two principal reasons upon which the majority of states have based their refusal to recognize an action for wrongful life.
The Turpin court reached a different conclusion, however, on the child’s claim for the “ ‘extraordinary expenses for specialized teaching, training and hearing equipment’ that [the plaintiff] will incur during her lifetime because of her deafness.” 31 Cal. 3d at 237. The court also noted that in the corresponding “wrongful birth” actions, parents have been permitted to recover medical expenses incurred on behalf of the child, and the court concluded that it would be illogical to allow only the parents and not the child to recover for the costs of the child’s medical care. 31 Cal. 3d at 328.
The Washington court, in Harbeson, and the New Jersey court, in Procanik, follow generally the rationale expressed in Turpin. The fourth case is Continental Cas. Co. v. Empire Cas. Co., decided by the Colorado Court of Appeals in June 1985. That case was a declaratory judgment action to determine which insurance carriers had what coverage responsibilities for a jury verdict entered in an underlying medical malpractice action, Peek v. Lockwood. The citation of the Peek case is not given, and we do not know whether or not it is the subject of appellate review. In Continental Cas. Co., the appellate court ruled that an action for wrongful life is a proper claim for relief, and that the elements necessary to sustain a recovery for the tort of wrongful life were established. 713 P.2d at 394. As we noted earlier, certiorari has been granted by the Colorado Supreme Court and its opinion has not yet been announced.
As we observed in Byrd, the birth of a normal and healthy child does not constitute a legal harm for which damages are recoverable. In the case now before us, treating the allegations of the petition as true, the child is neither normal nor healthy; he is an impaired person, born with genetic deformities. The question is, has plaintiff suffered a legally cognizable injury by being born impaired, rather than not being born at all?
Appellant argues that recognition of the cause of action for wrongful life is a growing trend among the states. This is simply not true. Since the Turpin decision came down in 1982, more courts have joined the majority, disallowing recovery, than have recognized the action.
We are convinced that an action for wrongful life should not be judicially recognized in Kansas. It has long been a fundamental principle of our law that human life is precious. Whether the person is in perfect health, in ill health, or has or does not have impairments or disabilities, the person’s life is valuable, precious, and worthy of protection. A legal right not to be born — to be dead, rather than to be alive with deformities — is a theory completely contradictory to our law. We agree with the Supreme Courts of Idaho, Alabama and North Carolina, and with the Court of Appeals of New York, whose opinions we have quoted above. Further discussion would merely prolong this opinion and add nothing of value to it.
Having determined that an action for wrongful life should not be recognized in this state, we need not determine the issue of whether a duty to the parents extends to unborn children, nor do we need to determine the issue of damages.
As Chief Justice Schroeder recently observed in the unanimous opinion of this court in Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 285, 662 P.2d 1214 (1983):
“[D]amages do not create a right or cause of action. The ‘cause of action’ is the wrong done, not the measure of compensation for it, or the character of relief sought. Damages are merely a part of the remedy which the law allows for the injury resulting from a breach or wrong.”
There being no recognized cause of action for wrongful life, there can be no recovery of damages based thereon. The trial court was correct in sustaining the motion to dismiss.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal by a mother, as natural and legal guardian of a deceased workman s minor children in a workmen’s compensation case, is from an order of the trial court denying compensation and reversing the findings and award of the commissioner in favor of the deceased workman’s minor children.
The' facts were stipulated by the parties and those which are pertinent to this appeal are: The deceased workman sustained personal injury by accident on September 23, 1952; appellee, a self-insurer, paid compensation at the rate of $25.00 per week from September 23, 1952, to and including February 28, 1956; as a result of the accident the workman died on March 6, 1956, which was three years, five months and twelve days after the accident; the mother of the four minor children filed written claim for compensation for them on April 21, 1956, and on April 30, 1956, she was appointed their legal guardian; after her appointment as legal guardian, the commissioner conducted a hearing on August 3, 1956, and made findings and an award in favor of appellants on December 12,1956. Appellee appealed therefrom to the district court and that court reversed the commissioner’s findings and award and denied compensation. Appellants (claimants) assigned as error that,
“The trial court erred in' its conclusion of law that General Statutes of Kansas, (1949), 44-509 and other substantial law did not effect the interpretation of General Statutes of Kansas, (1949), 44-520a, and therefore, the trial court erred in its conclusion of law that General Statutes of Kansas, (1949) 44-520a precluded appellants’ (claimants) right to recover compensation, i. e., the words ‘. . . or within one (1) year after the death of the injured employee if death results from the injury within three (3) years after the date of the accident . . .’ do not constitute a time limitation? (Capitalizing ours.)”
The pertinent sections of our workmen’s compensation act involved by reason of the contentions of the parties herein are contained in G. S. 1949, Chapter 44, Article 5, and read in part as follows:
“44-509. (a) In case an injured workman is mentally incompetent, or when death results from an injury in case any of his dependents, as herein defined is mentally incompetent ‘or a minor’ at the time when any right, privilege, or election accrues to him under this act ... no limitation of time, in this act provided for, shall run, so long as such incompetent has no guardian.”
“44-520a. (1) No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer . . . within one hundred twenty days after the accident . . . or within eight months after the death of the injured employee if death results from the injury within three years after the date of the accident. . . .” (Our italics.)
“44-535. The right to compensation shall be deemed in every case, including cases where death results from the injury, to have accrued to the injured workman or his dependents ... at the time of the accident, and the time limit in which to commence proceedings for compensation therefor shall run as against him, his legal representatives and dependents from the date of the accident.”
The only question raised is whether G. S. 1949, 44-509 affects the provision in G. S. 1949, 44-520a which reads, “. . . if death results from the injury within three years after the date of the accident.” Appellants contend this is a statute of limitation and cannot run against the minors until a legal guardian is appointed. In Forcade v. List & Clark Construction Co., 172 Kan. 119, 238 P. 2d 549, a workman suffered an injury compensable under our act from which injury he died approximately seven years after the date of the accident. At the time of the accident the workman had had one child but at the time of his death he' had four minor children as dependents. Claim was filed by the mother on her own behalf and on behalf of the dependent children. This court therein discussed G. S. 1949, 44-520a and 44-535 and the above contention of appellants was fully answered by the following statement, which refers to 44-520a:
“The provision of the new act . . . refers to the three years within which death must occur before any liability accrues under the Act. . With this interpretation the legislative intent appears that death from an accidental injury must ensue within three years from the date of the injury (G. S. 1949, 44-535) . . ., (p. 122)
and the opinion contains the further statement that,
“It [44-520a] required that the death occur within three years from the date of the accident.” (p. 122.)
Appellants contend that G. S. 1949, 44-509 was not considered in the Forcade case but this contention is not well founded because the discussion and language of the Forcade case indicate that 44-509 was in the court’s thinking notwithstanding the fact that the statute was not mentioned numerically or its exact provisions set out verbatim in the opinion.
Other contentions raised by appellants are of little or no help to them in view of the definite statements in the Forcade case which denied compensation to Forcade’s minor dependents. We are left with no alternative except to hold that the trial court did not err in denying compensation to the appellants herein.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Hall J.:
This is an appeal from a temporary injunction issued by the district court of Sedgwick County against the appellant labor union.
On May 25, 1956, the plaintiff appellee, Hyde Park Dairies, Inc., filed a petition in the district court of Sedgwick County, Kansas, praying for injunction against the defendant appellant union and its business agent.
The petition alleged: that the plaintiff was a Kansas corporation engaged exclusively in the business of manufacturing and selling ice cream, milk and other dairy products solely within the state of Kansas; that the plaintiff owned, operated and conducted its business in Wichita, Kansas; that all the products processed at its plant together with other dairy products distributed by it, were sold and distributed within the state of Kansas and none outside the state of Kansas; that in connection with this operation the plaintiff employed approximately eighteen (18) individuals as truck drivers who delivered plaintiff’s products within the city of Wichita; that the relation between the plaintiff and employees had always been harmonious and satisfactory and that no grievance existed between them.
The petition then further alleged: that the defendants caused their agents, servants and/or members, none of whom were employed by plaintiff, to patrol or picket on and over the entrance of the markets and grocery stores in Wichita, Kansas, where the plaintiff delivered its products and that in addition to such patrolling and picketing these persons also delivered to each and every individual entering these markets and grocery stores a pamphlet entitled “The Hyde Park Story”; that as a result of such activities at least one market notified plaintiff and did in fact cease doing business with the plaintiff.
That plaintiff was deprived of his right to carry on business and that such picketing and distributing of literature was carried on with the purpose of inflicting irreparable damage to plaintiff’s business.
That the defendants were engaged in a combination conspiracy to injure or destroy the good will, trade, business and/or property of plaintiff.
That these activities of the defendants were in violation of the laws of the state of Kansas and in particular in violation of Chapter 44, Article 8, 1955 Supplement to the General Statutes of Kansas 1949.
The plaintiff prayed that the defendants be restrained and enjoined from:
(a) Picketing and patrolling directed against the plaintiff beyond the area of its plant at 943 McLean Boulevard, Wichita, Kansas, and in particular from picketing and patrolling directed against the plaintiff at the stores and markets described in the petition and coercing and intimidating customers of said retail stores who sell dairy products of the plaintiff by distributing material directed against the plaintiff and its products;
(b) Continuing its conspiracy;
(c) From attempting to coerce plaintiff or its customers;
(d) From combining, agreeing or conspiring in any manner to injure or destroy the good will, trade, business and/or property of plaintiff etc.
The next day, May 26, 1956, the defendants filed their motion to dismiss the plaintiff’s petition. In brief, this motion was that the plaintiff’s business affected interstate commerce and any dispute involved was within the meaning of the Labor Relations Act of 1947 (29 U. S. C. A. § 141 et seq.) and that the district court was without jurisdiction to hear the controversy.
In order to expedite the matter before the court the parties agreed to an immediate hearing and stipulated to all the uncontroverted facts of the case.
While the parties could not agree on the times, places and exact nature of all events leading up to the picketing, these additional essential facts are stated in the record:
Sometime in January, 1956, some five months before the picketing and injunction, fourteen of the eighteen truck driver employees of the plaintiff authorized by election the defendant union as their collective bargaining agent. The union notified the plaintiff that it had so been designated but the plaintiff declined to so negotiate. The union then petitioned the regional director of the NLRR for an investigation and certification of its representation. On March 14, 1956, the regional director declined stating:
“. . . as there is insufficient evidence of effect of the Company’s operations upon interstate commerce to meet the jurisdictional requirements of the National Labor Relations Board. . . .”
The union then petitioned the State Commissioner of Labor to assume jurisdiction and to determine the representative of the employees for the purpose of collective bargaining. Pursuant to this petition the State Labor Commissioner caused an election to be held. Thirteen of the eighteen employees designated the defendant union as its bargaining representative. The State Labor Commission notified the plaintiff of the results of the election.
Thereafter and up until the time of the picketing and injunction the parties were unable to agree by stipulation as to the time, place and circumstances of defendant union efforts to negotiate with the plaintiff. The defendant union introduced as exhibits a number of letters written to plaintiff Hyde Park Dairies, Inc., in an effort to-negotiate.
The matter was decided by the district court on the pleadings and stipulations of the parties, and on the 25th day of May the court made the following findings of fact pertinent to this appeal:
“1. That tire plaintiff is a corporation. . . . That its principal place of business is . . . Wichita, . . . Kansas, but it also extends its routes into the adjoining territory, all within the State of Kansas.
“2. That tíre defendant, Chauffeurs, Teamsters, and Helpers Local Union No. 795 is a labor union with its principal place of business [in] . . . Wichita, Kansas, and it has been designated as the bargaining agent for eighteen truck driver employees of plaintiff by die Department of Labor of the State of Kansas. . . .
“3. That . . ., the defendants caused its agents, and representatives, none of whom have been in the employ of plaintiff to commence the patrolling and picketing of grocery stores and markets selling Hyde Park Dairy products, located in the City of Wichita, Kansas. Such activity consisted of carrying banners on the front and back of the individuals engaged in such patrolling activity and in delivering printed material consisting of two and one-half legal pages in length, entitled ‘The Hyde Park Story,’ requesting the public to refrain from purchasing Hyde Park products until such tíme as die Hyde Park Dairies, Inc., decides to bargain with the defendants and consummate a working condition contract covering its employees.
“4. That all of the eighteen truck drivers and route salesmen employed by plaintiff continued their regular work with the plaintiff, . . .
“5. That all the employees of the grocery stores and markets which were picketed by the defendants continued to perform all of their normal employment duties, . . .
“6. That the plaintiff’s right to carry on its business ... is a valuable property right, and such patrolling activity is an interference with such property right. That die WRL Supermarket, ... in Wichita, . . . purchased plaintiff’s dairy products but has ceased to purchase dairy products from plaintiff since commencement of such patrolling activity as a result thereof; but there was no demand or request by the defendants or their representatives on the WRL Supermarket to discontinue the handling of plaintiff’s dairy products, but diat it will continue to refrain from so purchasing such products as long as such patrolling activity continues. . . .
“7. That the picketing and patrolling activity ... in front of and adjacent to the retail stores and markets in Wichita, Kansas, handling the products of the plaintiff is unlawful, and tile same should be discontinued,
“8. That the distribution of die literature entitled ‘The Hyde Park Story,’ a copy of which is attached to the petition as Exhibit ‘A,’ is not unlawful, and that no injunction should be granted the plaintiff against the distribution of such literature.
“9. That . . . such injury to plaintiff’s business is irreparable.
“10. That the plaintiff purchased directíy from outside die state of Kansas supplies and equipment for the fiscal year ending December, 1955, in the sum of $185,215.53 and purchased supplies and equipment from local jobbers which originated from outside the state of Kansas in the sum of $64,525.25. The Safeway Stores, Inc., and the Kroger Company are both engaged in interstate commerce and subject to the jurisdiction of the National Labor Relations Board, and the WRL supermarket is not subject to the National Labor Relations Board. The court concludes that it has jurisdiction of this action.
“11. The defendants’ agents and officers did verbally, on one or more occasions, and in writing on four different occasions, request the plaintiff’s officers and agents to meet with them to negotiate an agreement covering the track driver route salesmen employees of the plaintiff. The plaintiff did not accede to the defendants’ request.
“12. That the plaintiff’s truck driver route salesmen deliver the plaintiff’s dairy products at the retail grocery stores of tire Kroger Company, Safeway Stores, Inc., and the WRL Supermarkets at which the defendants were picketing, . . . The WRL Supermarket is on a cash basis with plaintiff. The local general office of the Safeway Stores, Inc., and Kroger Company remit to plaintiff once each week or once every two weeks for the dairy products they purchase from plaintiff.
“13. That a temporary injunction should be granted . . . enjoining them from picketing or patrolling in front of or adjacent to any of the grocery stores, markets or other locations at which Hyde Park Dairies, Inc., products are being sold at retail, . . .”
Upon these findings the court made appropriate orders.
At the outset one preliminary matter must be disposed of. The trial court found that appellee made direct yearly purchases of supplies and equipment from without the state in the amount of $185,215.53 and indirect out-of-state purchases in the sum of $64,525.25; that two of appellee’s customers were engaged in interstate commerce and subject to the jurisdiction of the NLRR and that one of its customers was not so engaged; and concluded that it had jurisdiction of the action. Appellee’s original position in this appeal was that its business did not sufficiently “affect” interstate commerce to subject it to federal jurisdiction, and even if it did, the NLRR had declined to exercise jurisdiction and therefore the state court properly exercised jurisdiction by reason of its residual power which was limited only by the actual extent of federal occupation.
Between the time of the district court’s decision to assume jurisdiction and the submission of the appeal here the United States Supreme Court decided Guss v. Utah Labor Board, 353 U. S. 1, 1 L. Ed. 2d 601, 77 S. Ct. 598; Meat Cutters v. Fairlawn Meats, 353 U. S. 20, 1 L. Ed. 2d 613, 77 S. Ct. 604; and San Diego Unions v. Garmon, 353 U. S. 26, 1 L. Ed. 2d 618, 77 S. Ct. 607, which held in effect that in the absence of a cession agreement under Section 10 (a) of the Act (29 U. S. C. A. § 160 [a]), state courts are excluded from disputes within the jurisdiction of the NLRB, even where the Board has declined or would decline to exercise jurisdiction.
This limitation on state jurisdiction was recognized and followed by this court in a series of recent cases: Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349; Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371; Stieben v. Local Union 685, 181 Kan. 832, 317 P. 2d 436; Newell v. Local Union 795, 181 Kan. 898, 317 P. 2d 817. In the Friesen case the court said:
“Where Congress has vested in the National Labor Relations Board jurisdiction over labor relations matters affecting (interstate) commerce, it is held that Congress has pre-empted the field by placing exclusive jurisdiction in the National Labor Relations Board and completely displaced state power to deal with such labor matters. (Guss v. Utah Labor Board, 353 U. S. 1, 77 S. Ct. 598, 1 L. Ed. 2d 601.)” (Syl. 1.)
In oral argument appellee abandoned both of its original jurisdictional arguments and conceded that its business “affected interstate commerce” and that, in the absence of a cession agreement, it was subject to the jurisdiction of the NLRB.
The picketing of the plaintiff’s customers by stranger pickets does not defeat the jurisdiction of the NLRB. The picketing here was not by the employees of plaintiff but by what is generally referred to as stranger pickets. While there is a lack of uniformity in the decisions on the effect, if any, of such picketing, this court has followed Garner v. Teamsters Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161, in holding such picketing does not in any way defeat the primary jurisdiction of the NLRB in an otherwise pre-empted case under the Labor Management Relations Act. (City Motors v. International Ass’n of Machinists, Lodge No. 778, A. F. of L., 179 Kan. 157, 292 P. 2d 1102; Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110; Texas Const. Co. v. H. & P. E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160.)
Ordinarily on appeal the findings and conclusions of the trial court would be examined and this court would determine whether there was sufficient competent evidence to support the findings and/or whether the rules of law applied were correct. Because of the change in the jurisdictional aspects of the case, discussed above, we must look primarily to the contentions of the parties.
The appéllant union’s position may be summarized as follows:
Since the controversy is “pre-empted” it is in the exclusive jurisdiction of the National Labor Relations Board.
It also denies it engaged in any acts whatsoever which were illegal either under the law of the state of Kansas or under the federal law. More specifically, it contends the picketing in which the union engaged was a “concerted activity for the purpose of collective bargaining and other mutual aid and protection,” and as such was protected by Section 157 of the National Labor Relations Act (29 U. S. C. A. § 157) and the Labor Management Act of Kansas (G. S. 1949, 44-803 as amended). It also cites Section 158 (a) (5) (29 U. S. C. A. § 158 [a] [5]). Further, that its picketing was a lawful exercise of freedom of speech guaranteed by the First and Fourteenth Amendments to the United States Constitution and thereby not a prohibited activity under Section 158 (b) (4) of the National Labor Relations Act (29 U. S. C. A. § 158 [b] [4]).
Section 157 ( 29 U. S. C. A. § 157) provides as follows:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . (p. 235.) (Emphasis ours.)
And section 158 (a) (5) (29 U. S. C. A. § 158 [a] [5]):
“It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.”
Section 159 (a) provides generally for the selection of union representatives for the purpose of collective bargaining.
The Kansas statute is very similar. G. S. 1949, 44-803 provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, . . .” (Emphasis ours.)
The appellee company’s position may be summarized as follows:
Notwithstanding the fact the matter may “affect interstate commerce” and the National Labor Relations Board may thus have jurisdiction, it is not “pre-empted” completely because the picketing prohibited by the district court is a type of conduct neither protected nor prohibited by the federal act, and, therefore, for such reason alone, is subject also to state jurisdiction.
The company contends that the picketing enjoined by the district court is not prohibited by the Act for the reason that the picketing did not coerce anyone to join a union, and was not in violation of Section 158 (b) (4) (29 U. S. C. A. § 158 [b] [4]). It was not aimed at inducing employees to cease working or handling goods in the course of their employment. The picketing instead coerced employers to cease doing business with plaintiff. Picketing of this type the company concedes, though it may be illegal under state law, is not prohibited under the federal act.
The company also contends the picketing enjoined by the district court is not a protected activity under the Act, for the reason that the union was not attempting to exercise its right to concerted activity under Section 157 of the Act (29 U. S. C. A. § 157). To the contrary, the picketing was unlawful under state law and Section .157 does not excuse concerted activities which are themselves independently unlawful.
It cites National Labor Rel. Bd. v. Peter C. K. Swiss Choc. Co., 130 F. 2d 503; Labor Board v. Fansteel Corp., 306 U. S. 240, 83 L. Ed. 627, 59 S. Ct. 490, 123 A. L. R. 599; Local Union No. 1229, Etc. v. National Labor Relations Bd., 202 F. 2d 186; Auto. Workers v. Wis. Board, 336 U. S. 245, 93 L. Ed. 651, 69 S. Ct. 516; Milwaukee Boston Store Co. v. Amer. Fed. of H. W., 269 Wis. 338, 69 N. W. 2d 762; Adams Dairy v. Burke, 293 S. W. 2d 281, certiorari denied 352 U. S. 969, 1 L. Ed 2d 323, 77 S. Ct. 360; Arnold Bakers, Inc. v. Strauss, 153 N. Y. S. 2d 999; Seven Up Etc. Co. v. Grocery Etc. Union, - Cal. App. 2d -, 301 P. 2d 631.
The company further contends that the picketing enjoined, which cannot be considered protected by the federal act was independently unlawful and against the public policy of the state of Kansas under the provisions of Kansas statutes and judicial decision. More particularly the company calls attention to G. S. 1955 Supp., 44-809 (13) which provides that it shall be unlawful for any person to picket “beyond the area” of an industry within which a labor dispute arises. The company also states the union’s picketing at the neutral retail stores, having the tendency and effect of coercing them to cease doing business with plaintiff, ivhile not a secondary boycott within the Kansas statute (G. S. 1955 Supp., 44-809a) which is patterned after the Federal Act (29 U. S. C. A. § 158 [b] [4], was a common law secondary boycott, and, therefore, unlawful and enjoinable. Finally the company contends defendant’s picketing was in restraint of trade in violation of G. S. 1949, 50-101, 102 and 112 and contrary to the public interest provision of G. S. 1949, 44-617.
On the common law boycott appellee states there is no Kansas case directly in point but cites Bull v. International Alliance, 119 Kan. 713, 241 Pac. 459, as clearly expressing a common law policy against picketing which interferes with business property rights.
It shall be particularly noted both parties concede that a state “may not prohibit the exercise of rights which the federal Acts protect” and “may not enjoin under its own labor statute conduct which has been made an ‘unfair labor practice’ under the federal statutes” (Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 474, 475, 99 L. Ed. 546, 75 S. Ct. 480; Asphalt Paving v. Local Union, 181 Kan. 775, 781, 317 P. 2d 349); and maintain that the picketing here was not prohibited activity under Section 158 (b) (4) of the National Labor Relations Act (29 U. S. C. A. § 158 [b] [4]).
The findings and conclusions of the trial court did not resolve the conflict of these contentions.
Although, on the one hand, the court found the union designated as a bargaining unit and the purpose of the defendant union’s picketing was an appeal to the public until the company decided to bargain with the union, it did not find such purpose either protected under Section 157 of the Act (29 U. S. C. A. § 157) or under the state statute. On the other hand, in finding that the picketing was an interference with the rights of the plaintiff and “unlawful” it did not specify the state law, statutory or otherwise, upon which it so concluded.
In this state, generally speaking, two types of cases involving labor disputes have been decided in recent years.
In Newell v. Local Union 795, supra and Binder v. Local Union No. 685, supra, this court held that the disputes did not affect interstate commerce and the state courts clearly had jurisdiction of the actions. In those decisions the court was governed by the decisions of the United States Supreme Court, which hold in effect that picketing in businesses subject to the jurisdiction of the states is protected under constitutional free speech guarantees unless the purpose of the picketing or the methods employed by the pickets contravenes the civil or criminal law of the state. (Teamsters Union v. Vogt, Inc., 354 U. S. 284, 1 L. Ed. 2d 1347, 77 S. Ct. 1166 and cases cited therein.)
While this court has built up no extensive body of precedent on the picketing or other activities which are lawful under the state labor law or unlawful by reason of that law. or other state law or judicial decision, in the Newell and Binder cases it held the pickets’ purposes or methods unlawful and enjoinable.
In the other type of labor cases the disputes affected interstate commerce and the only question was whether the activities were protected or prohibited by the federal labor Act. (Stieben v. Local Union 685, supra; Asphalt Paving v. Local Union, supra; Friesen v. General Team & Truck Drivers Local Union No. 54, supra; City Motors v. International Ass’n of Machinists, Lodge No. 778, A. F. of L., supra; Kaw Paving Co. v. International Union of Operating Engineers, supra; Texas Const. Co. v. H. & P. E. Local Union No. 101, supra; Amalgamated Meat Cutters, Etc. v. Johnson, 178 Kan. 405, 286 P. 2d 182.) In each of these cases the court held the state court pre-empted because an alleged unfair labor practice, within that section of the federal Act prohibiting such practices, was involved in the conduct sought to be enjoined.
For a helpful discussion of the Kansas cases and the general area of federal-state problems in the field of labor law, consult Hopson, “Kansas Labor Law and District Court Injunctions,” Vol. 6, No. 1 University of Kansas Law Review (October, 1957).
The case at bar “affects” interstate commerce and comes within the second group of cases cited above.
Assuming arguendo, that the picketing here is not prohibited activity under Section 158 (b) (4) (29 U. S. C. A § 158 [b] [4]) as the parties maintain, on appeal the only point to be determined is whether the conduct at issue is either prohibited or protected under Sections 157 and 158 (a) (29 U. S. C. A. §§ 157, 158 [a]) of the Act, so as to defeat completely state jurisdiction.
While many authorities have been cited by both parties, the case of Weber v. Anheuser-Busch, Inc., supra, seems to be the most analogous to the facts here. In that case an unfair labor practice charge against the union had been filed by the employer with the National Labor Relations Board alleging violation of Section 158 (b) (4) (d) of the Act (29 U.S.C.A. § 158 [b] [4] [d]). The employer then obtained an injunction in the state court alleging; as here, that the union strike constituted among other things an “illegal conspiracy,” “a common law secondary boycott,” and “restraint of trade” under the laws of the state.
The court held the state was without power to enjoin for the alleged violations of these or any other state laws. In so deciding the court said: “. ; . Certainly if the conduct is eventually found by the National Labor Relations Board to be protected by the TaftHartley Act, the State cannot be heard to say that it is enjoining that conduct for reasons other than those having to do with labor relations. . . .”
Furthermore, if the activity is prohibited or protected under the federal Act, a state may not intervene to effectuate its own labor policy, to effectuate a policy unrelated to that on which federal supremacy is exercised.
The court discussed the question of protected and prohibited activities quite extensively. It recognized that the area of federal pre-emption is not subject to a precise delimitation, largely because the meaning of the parts of Section 158 of the federal Act outlawing unfair labor practices and the area of protected concerted activity under Section 157 “have not been clearly or consistently bounded by the NLRB or the courts.” Notwithstanding this uncertainty the court pointed out that some general guideposts are available.
Where the business “affects interstate commerce” the federal board’s machinery for dealing with certification problems also carries implications of exclusiveness, thus a state may not certify a union as the collective bargaining agent for employees where the federal board, if called upon, would use its own certification procedure. (Weber v. Anheuser-Busch, Inc., supra; LaCrosse Tel. Corp. v. Wis. Board, 336 U. S. 18, 93 L. Ed 463, 69 S. Ct. 379.)
The same result is reached even if the federal board has refused certification, as here, if the employer is subject to the Board’s jurisdiction. (Bethlehem Co. v. State Board, 330 U. S. 767, 91 L. Ed. 1234, 67 S. Ct. 1026; Guss v. Utah Labor Board, supra; Meat Cutters v. Fairlawn Meats, supra; San Diego Unions v. Garmon, supra.)
Essentially it is not within the power or competence of a court— state or federal — to determine whether an activity is in fact protected or prohibited by the federal Act. Ultimately only the NLRB can make this determination. (Weber v. Anheuser-Busch, Inc., supra; Garner v. Teamsters Union, supra.)
In determining, therefore, whether an activity is protected or prohibited under Sections 157 and 158 of the Act (29 U. S. C. A. §§ 157, 158) a state court need only to determine that the facts reasonably bring the controversy within the sections and if so should decline jurisdiction. In Weber v. Anheuser-Busch, Inc., supra, the court said:
■ . . But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.” (p. 481.)
Kansas recognizes this limitation on state power. (Asphalt Paving v. Local Union, supra; Amalgamated Meat Cutters, Etc. v. Johnson, supra; Kaw Paving Co. v. International Union of Operating Engineers, supra.)
The Supreme Court has held specifically that where the conduct sought to be enjoined is an unfair labor practice, the state court must decline jurisdiction. (Garner v. Teamsters Union, supra; Capital Service, Inc. v. Labor Board, 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699; Building Trades Council Et Al. v. Kinard Construction Co., 346 U. S. 933, 98 L. Ed. 423, 74 S. Ct. 373; Plankinton Packing Co. v. Wisconsin Employment Relations Board Et Al., 338 U. S. 953, 94 L. Ed. 588, 70 S. Ct. 491.) It has ruled that the right to bargain collectively (Hill v. Florida, 325 U. S. 538, 89 L. Ed. 1782, 65 S. Ct. 1373) and to strike peacefully to enforce demands for wages, hours and working conditions (Automobile Workers v. O’Brien, 339 U. S. 454, 94 L. Ed. 978, 70 S. Ct. 781; Bus Employees v. Wisconsin Board, 340 U. S. 383, 95 L. Ed. 364, 71 S. Ct. 359) are within the protection of the Act.
In Mine Workers v. Arkansas Flooring Co., 351 U. S. 62, 100 L. Ed. 941, 76 S. Ct. 559, a union which represented a majority of the employees eligible to be represented, but which had not filed the data or affidavits described in Sections 9 (f), (g) and (h) of the Act (29 U. S. C. A. § 159 [f], [g] and [h]), picketed the primary employer who had denied recognition to the union. The Court declared that in the absence of any bona fide dispute as to the existence of the required majority of eligible employees, the employer’s denial of recognition to the union would violate Section 158(a)(5) of the Act (29 U. S. C. A. § 158[a] [5]), and that since an unfair labor practice or prohibited activity was involved, the state court would be without jurisdiction. Furthermore, the union’s primary picketing for recognition was protected activity under Section 157 (29 U. S. C. A. § 157).
Although the scope of protected activities under Section 157 has not been defined, in the absence of a clear case involving injurious conduct which the NLRR is not empowered to prevent, apparently all picketing which is not an unfair labor practice must be consid ered protected. It does protect the right to strike, peacefully picket and boycott for purposes and methods not prohibited by Section 158 (29 U. S. C. A. § 158). (International Union v. O’Brien, supra; Amalgamated Association v. Wisconsin Employment Relations Board, supra; G. C. Breidert Co. v. Sheet Metal Etc. Assn., 139 C. A. 2d 633, 294 P. 2d 93; Garner v. Teamsters Union, supra.)
In the Garner case, the Supreme Court declared:
“The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the national Labor Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that die public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.” (p. 499.)
In the Weber case the court recognized the point contended here by appellee that there is an area of activity neither protected nor prohibited by the federal Act in which the state may exercise jurisdiction. The opinion cites Allen-Bradley Local v. Board, 315 U. S. 740, 86 L. Ed. 1154, 62 S. Ct. 820; Auto. Workers v. Wis. Board, supra; Algoma Flywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 69 S. Ct. 584; United Workers v. Laburnum Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833, all as examples of decisions where the activity was neither protected nor prohibited.
The areas which have been held subject to state jurisdiction have generally involved injurious conduct which the NLRB is without express power to prevent. Thus in Allen-Bradley Local v. Board, supra, a case of mass picketing, threatening of employees, obstructing streets and highways and picketing homes, it was held that the state could exercise “its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.” Similarly in United Workers v. Laburnum Corp., supra, the state court was allowed to grant damages based on violent conduct amounting to a common law tort on the theory that no compensatory relief was available under the federal Act. In Auto. Workers v. Wis. Board, supra, the state court was allowed to enjoin recurrent, unannounced work stoppages. The court concluded by saying: “the Labor Management Relations Act leaves much to the states, though Congress has refrained from telling us how much. This penumbral can be rendered progressively clear only by the course of litigation.”
The case at bar does not qualify for this limited area of state jurisdiction.
An examination of the authorities cited by appellee in support of its contentions finds them unpersuasive. It is clear that this is not a case involving means which the NLRR is without express power to prevent. In view of the broad language and obvious intent of the Garner decision, we cannot find that secondary picketing which does not constitute an unfair labor practice under the federal Act is within the realm of state control. (Milwaukee Boston Store Co. v. Amer. Fed. of H. W., supra.) Furthermore, appellee’s argument overlooks the provisions of Section 158 (a) (5) (29 U. S. C. A. § 158 [a] [5]) which makes it an unfair labor practice and a prohibited activity for the employer to refuse to bargain collectively. And appellee’s argument that the activity in question is “independently unlawful” under state law cannot be sustained once it is determined that the controversy is reasonably within the prohibitions and/or protections of the federal Act.
One final point remains before concluding the opinion in this appeal.
In the determination of whether a particular activity of a labor dispute is either protected or prohibited by the federal or state law the purpose and method of the activity are all important.
In the decided cases purpose is described as an elusive thing. The authorities furnish no complete guide for a court to make this determination. In a secondary activity case, Le Bus v. General Truck Drivers, Chauffeurs, Etc., 141 F. Supp. 673, the court said:
“. . . Unfortunately, no formula or other mechanical means can produce the right answer in every case. It is ‘the objective of the unions’ secondary activities . . . and not the quality of the means employed to accomplish that objective, which was the dominant factor motivating Congress in enacting that provision.’ International Brotherhood of Electrical Workers, Local 501, v. National Labor Relations Board, 341 U. S. 694, 704, 71 St. Ct. 954, 959, 95 L. Ed. 1299. All die facts of each case must be studied in order to determine the legality of the union’s secondary activities. No one fact can be necessarily conclusive. Sales Drivers, etc., v. National Labor Relations Board, D. C. Cir., 229 F. 2d 514; National Labor Relations Board v. General Drivers, etc., 5 Cir., 225 F. 2d 205.” (p. 676.)
As yet, the decisions of this court contain little precedent to follow. In a sense it may be said purpose and method have been determined in all of the Kansas cases, but they have been discussed in only a few. (Asphalt Paving v. Local Union, supra; Newell v. Local Union 795, supra; Binder v. Local Union No. 685, supra.)
In the Rinder case this court determined that the purpose of the union activity was organizational and designed to coerce the employees, the plaintiffs in the case, to join a union. Since the case did not “affect” interstate commerce the Kansas law applied and such a purpose under the facts and circumstances presented was unlawful by the provisions of G. S. 1949, 44-803, 808, 809; G. S. 1955 Supp., 44-808, 809; and G. S. 1949, 44-813.
However, the facts of this case present no problem in the determination of purpose and method. The clear purpose of the defendant union’s concerted activities was to compel recognition of the union and to consummate a collective bargaining agreement.
It was stipulated by the parties and found by the district court that the appellant union represented a majority of appellee’s employees eligible to be represented. In the absence of a bona fide dispute as to majority status, appellee’s denial of recognition would violate Section 158 (a) (5) of the Act (29 U. S. C. A. § 158 [a][5]). In any event, the district court also found that the purpose of the secondary picketing was to compel recognition of the union and to consummate a collective bargaining agreement. Such picketing is reasonably within the protection of Section 157 ( 29 U. S. C. A. § 157).
It is not necessary to consider appellant’s argument that its picketing was protected by Kansas law, under G. S. 1949, 44-803. Suffice it is that if this dispute did not “affect” interstate commerce, as the district court found, the court should then have first determined whether the activity was protected under that statute or prohibited by any related statute, particularly G. S. 1955 Supp., 44-808 which is similar in purpose to Section 158 (a) of the federal Act (29 U. S. C. A. § 158 [a]) and makes it unlawful for any employer, inter alia, to interfere with or restrain employees in the exercise of their rights guaranteed under G. S. 1949, 44-803.
It is also not necessary to consider appellant’s argument on the extent of protection afforded its picketing by the free speech guarantees of the First and Fourteenth Amendments to the United States Constitution.
As stated above, appellant union’s activities may be reasonably deemed to come within the protection afforded by Section 157 (29 U. S. C. A. § 157) of the National Labor Relations Act and appel lee’s conduct may be reasonably deemed to come within the prohibition of Section 158 (a) (5) of the Act (29 U. S. C. A. § 158 [a] [5]) Under these circumstances the dispute was pre-empted by federal authority and the district court had no jurisdiction to issue the injunction.
The judgment of the district court is vacated and the case remanded with directions to dismiss the action. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from the order of the trial court sustaining the separate demurrers of the defendants to the plaintiff’s evidence.
The plaintiff W. G. Webster filed suit against the Kansas Power and light Company and W. O. Homer to recover damages as the result of a gas explosion. In his petition the plaintiff alleged that he owned two frame duplex apartment houses in Junction City; that a gas main of the Kansas Power and Light Company was lo cated in an alley adjacent to the houses; that at about 1:30 a. m., May 26, 1955, one of plaintiff’s tenants struck a match to light a gas stove; that there was an explosion which blew down and destroyed the house; that the explosion was caused by the concurrent negligence of defendants in that defendant Homer in December, 1954, while acting as an independent contractor ■ dug a sewer service trench from the main sewer in the alley to the plaintiff’s houses with a power machine known as a backhoe; that in so doing the operator of the hoe negligently caught it on the gas main and breaking it at a point near plaintiff’s houses; that Homer failed to notify the power company of this occurrence and that the power company was negligent in not inspecting its main after the sewer trench had been dug and that an inspection would have disclosed the soil to be saturated with gas.
Upon the completion of plaintiff’s evidence both defendants demurred. The court sustained both demurrers on the ground of the plaintiff’s contributory negligence. In ruling on the demurrers the court said:
“The Court ... it seems to me that the construction of this thing is in Paragraph 6 of the plaintiff’s petition where he alleges: ‘That said explosion was caused by the concurrent negligence of defendants in that during the month' of December, 1954, defendant Homer, acting as an independent contractor, through his agent and employee, William D. Homer, dug a sewer service trench from said sewer main to plaintiff’s said houses with a power machine known as a backhoe. That in so doing, said William D. Homer negligently caught said back hoe on said gas main, thereby breaking said gas main at a point in the alley near plaintiff’s said houses.’' Now, that is the theory upon which the plaintiff drafted his petition and his alleged facts here and was the theory upon which he introduced his evidence. And it seems to the Court that if that is the fact, that the plaintiff Webster stood there according to his own testimony and saw exactly what happened. That is in conformity with the petition and the testimony of the plaintiff himself and the other testimony, and under those conditions it is the opinion of the Court that the plaintiff failed to use the ordinary care and did not exercise the diligence that a prudent person should have exercised and that the demurrer in each instance, of the Kansas Power and Light Company and of the defendant Homer will be sustained.”
On direct examination the plaintiff testified that he engaged the defendant, W. O. Homer, to dig trenches necessary to connect laterals from his new houses to the sewer main. Homer put a backhoe on the job with his brother as operator.
“Q. Now, as he dug, you watched him, did you?
“A. I was there the first part of the time while he was digging.
"Q. During the time you were watching, did you see his back hoe strike anything?
“A. I wouldn’t say it struck it, I would say it come in contact with the gas pipe.
“Q. With what?
“A. It came in contact with the gas pipe.”
“Q. At any time during the period that he was working there, did you give him directions as to how to handle his machine?
“A. I did not.”
On re-direct examination the plaintiff testified:
“Q. Did the impact or the contact of the back hoe with the pipe, was it such that to lead you to believe that it had broken the pipe?
“A. That, I couldn’t say. It could have. Might have not have. I wouldn’t say.”
The plaintiff also testified that he did not notify the Kansas Power and Light Company any time before the explosion.
There is considerable testimony in the record by the plaintiff and others, on both direct and cross-examination, relating to this occurrence. The gas main was fully exposed. The force of the backhoe left marks on it and bent it slightly. A neighbor across the alley testified that the gas pipe from the meter to the stove in her house ran underneath the kitchen floor and that “it suddenly flew up and made a loud noise against the kitchen floor.” Shortly afterward plaintiff’s tenants complained of the odor of gas. The plaintiff notified the power company of these complaints. It inspected the premises and appliances. However, it did not check the main and plaintiff did not advise the power company at any time that the backhoe had come in contact with it.
Was the court correct in deciding that the plaintiff was contributorily negligent as a matter of law in failing to notify the power company?
When tested by a demurrer, it is the well established rule in this state that a plaintiff’s contributory negligence is a question which must be submitted to a jury if the facts are such that reasonable minds might reach different conclusions thereon. (Tuggle v. Cathers, 174 Kan. 122, 254 P. 2d 807; Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752.)
Of course, in ruling upon a demurrer to his evidence the plaintiff is entitled to the benefit of all inferences and to have his evidence considered in the most favorable light. (Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061, and authorities cited therein.)
These rules of law must be applied in relation to another one equally well established. Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery even though there may be added to the knowledge of danger a comprehension of some risk. Moreover, knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law. (Bradley v. Allis Hotel Co., 153 Kan. 166, 109 P. 2d 165; Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649.)
Did the plaintiff here have a full appreciation of the risk involved in not notifying the power company that the backhoe had struck the gas main? Under all the plaintiff’s evidence reasonable minds might well reach different conclusions in answering this question.
In an analogous case on the facts (D’Entremont v. Boston Consolidated Gas Co., 320 Mass. 582, 70 N. E. 2d 700) the court held that the plaintiff was not guilty of contributory negligence as a matter of law and that the question was for the jury. In that case illuminating gas entered the plaintiff’s apartment by reason of a defective connection in a meter under the gas company’s control. The plaintiff became ill and sued the gas company. The court said:
“We think that the foregoing facts warranted a finding that illuminating gas entered the plaintiff’s apartment by reason of a defective connection in a meter under the defendant’s control which in the exercise of reasonable care and diligence it might have remedied -before it did. Hunt v. Lowell Gas Light Co., 3 Allen, 418, 419. Ferguson v. Boston Gas Light Co., 170 Mass. 182. Soulier v. Fall River Gas Works Co., 224 Mass. 53. Rowers v. Wake-field, 231 Mass. 565. Barbeau v. Buzzards Bay Gas Co., 308 Mass. 245, 247-248. The plaintiff, after discovering the presence of gas in her apartment, could not sit by doing nothing and then hold the. defendant responsible for the consequences of a condition of which it had no knowledge. Hunt v. Lowell Gas Light Co., 1 Allen, 343, 348-350. But it could not be ruled as matter of law that the plaintiff was guilty of contributory negligence. Whether she acted with reasonable diligence in bringing the matter to the attention of the defendant and took proper precautions for her own safety were questions of fact for the jury.” (pp. 583, 584.)
For a similar case with a contrary result see Miss. Public Serv. Co. v. Bassett, 184 Miss. 6, 184 So. 419.
Weighing all the plaintiff’s evidence in the light of the above rules we are of the opinion that the question of the plaintiff’s contributory negligence was a matter for the jury and the court erred in sustaining the demurrers on the ground that he was guilty of contributory negligence as a matter of law. ■ :
The judgment is reversed.
Parker, C. J., Price and Hall, JJ., dissenting. | [
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The opinion of the court was delivered by
Robb, J.:
This is one of four separate actions involving the doctrine of res ipsa loquitur arising out of the explosion of the house of plaintiff in Olathe, Kansas. This defendant (Skelly Oil Company) moved to have plaintiff’s petition made definite and certain on six grounds, which motion was overruled by the trial court. When a similar motion filed in one of the companion cases (Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501, this day decided) was sustained in part by the trial court, the plaintiff filed an amended petition. Defendant demurred generally to this amended petition and the demurrer was overruled by the trial court. Defendant here appeals from that order and from all other adverse orders of the trial court.
The amended petition in Worden v. Union Gas System, supra, has been appended to that opinion and since this case involves the same issues, that opinion is adopted and incorporated herein as controlling and determinative of this appeal. We are concerned only with the sufficiency of the amended petition (Taylor v. Coleman Lamp & Stove Co., 141 Kan. 168, 40 P. 2d 457, cited with approval in Hengel v. Thompson, 176 Kan. 632, 636, 272 P. 2d 1058) and are not now determining anything in connection with subsequent pleadings or the issues created thereby and the evidence offered in support or contravention of those issues. We think the petition sufficiently alleges a cause of action against this particular defendant.
The judgment is affirmed.
This case was decided and the opinion prepared and concurred in by Hall, J., prior to his resignation from the court.
Parker, C. J., Price and Schroeder, JJ., dissent.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from an order sustaining a demurrer to a petition for a Writ of Quo Warranto.
This action was instituted by the state of Kansas on the relation of Charles D. Johnson, County Attorney of McPherson County, Kansas, against the defendants, officers and members of newly organized Rural High School District No. 6 in McPherson County, to declare void the proceedings to organize the district, to declare the district nonexistent, and to oust the defendants.
The defendants filed motions to strike and to make more definite and certain, a portion of which were sustained and some of which were overruled by the court. The plaintiff then filed an amended petition.
The defendants demurred to the amended petition. The court sustained the demurrer. Hence this appeal.
In the petition the plaintiff raises many points of alleged error in the organization of the school district which was organized under the provisions of G. S. 1955 Supp., 72-3537 et seq.
The allegations are, inter alia, that the petitions circulated for the establishment of the district were not properly presented or filed; that a qualified elector was not appointed to make an enumeration; that the order approving the petitions was signed without authority; that the minutes of the Board of County Commissioners did not disclose that any action was taken relating to the petitions; that the notice of hearing published by the County Superintendent did not properly describe the boundary lines of the area sought to be organized; that the election notice was published without authority; that the election notice was less than the time provided by statute; that the polling places, judges and ballots did not comply with the statute; and finally, unlawful electioneering and solicitation were permitted at the polling places.
We have carefully examined these allegations with supporting exhibits. With the exception of paragraph 10 relating to the election notice, they are not of sufficient gravity to vitiate the statute and the organization of the district under it. (State, ex rel., v. Miami County Comm'rs, 168 Kan. 723, 215 Pac. 631; State, ex rel., v. Martin, 178 Kan. 476, 289 P. 2d 745.)
Paragraph 10 of the petition provides as follows:
“That contrary to G. S. 1949 (1955 Supp.) 72-3541, twenty-one (21) days did not elapse from the time of the first publication of said notice on November 26, 1956, until the election was held on December 17, 1956.”
This case was first argued on October 2, 1957. On January 24, 1958, the court heard further argument on the point raised in paragraph 10.
There is no dispute as to the facts of publication. The date of the first publication was on November 26, 1956, and the date of the election was on December 17, 1956.
The appellant contends that under the provisions of G. S. 1955 Supp., 72-3541, twenty-one (21) “clear days” did not elapse from the time of the first publication until the time of election.
The appellees contend that the statute does not require twenty-one (21) “clear days” from the time of the first publication until the time of election but that under the statute the first day of publica Ron is included and the' last day is excluded. If so, the election notice was good in the instant case because counting the first day of publication, on November 26, 1956, twenty-one (21) days had elapsed when the election was held on December 17, 1956.
The source of the prior law to G. S. 1955 Supp., 72-3541 is G. S. 1949, 72-3502.
Section 72-3502, G. S. 1949 provided:
“. . . Notice of all such elections shall be given at least twenty-one days prior to the date of such election by posting printed or typewritten notices on the door of each schoolhouse in the proposed district and by publishing the same twice in some newspaper published in each county in which the proposed district or any part of the proposed district lies, . . .” (Emphasis ours.)
SecRon 72-3541, G. S. 1955 Supp. now provides:
“. . . Notice of such election shall be given at least twenty-one days prior to the date thereof by posting notices on the front door of each schoolhouse in the proposed district and by publishing notice twice in a newspaper published in each county in which any part of the proposed district lies, the first publication to be not less than twenty-one days prior to the election. . . .” (Emphasis ours.)
The only change made in the statute was the addiRon of the words “the first publication to be not less than twenty-one days prior to the election.”
Prior to this amendement the rule was well established in the decided cases that in computing the Rme of “at least twenty-one days” the first day of publication was included and the last day was excluded. This rule of compuRng time did not require “twenty-one clear days” of publication. (State, ex rel., v. Wallace, 112 Kan. 264, 210 Pac. 348; City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937; State, ex rel., v. Miami County Comm’rs, supra.)
The Miami case was decided in 1950. The amendment of the law by the legislature was in 1951. The additional requirement in the statute that the first publicaRon must be “not less than twenty-one days” can only be construed to mean a legislative intent of twenty-one “clear days,” thus abrogaRng the previous rule established by judicial interpretation of G. S. 1949, 72-3502.
The case at bar is one of first impression under the amended statute (G. S. 1955 Supp., 72-3541.) Under its provisions notice of election must be given “at least and not less than twenty-one clear days” prior to the election.
The noRce here did not comply with the statute and the election held on December 17, 1956, was void.
The court erred in sustaining the demurrer to the amended petition.
The judgment is reversed.
Hall, J., dissents. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from an order overruling a demurrer of defendant, Charles P. Trager, to the plaintiff’s amended petition.
The plaintiff, O. Florine Worden, filed suit against the defendants, Union Gas System, Inc., The Skelly Oil Company, Modem Ruilders, Inc., and Charles P. Trager. The suit involved damages arising out of an alleged gas explosion. The plaintiff’s petition invoked the doctrine of res ipsa loquitur. The defendant Trager along with the other defendants moved to have plaintiff’s petition made more definite and certain. This defendant’s motion was overruled. Certain portions of defendant Union Gas System, Inc.’s motion were sustained and the plaintiff filed an amended petition. All defendants then demurred to the amended petition.
This appeal is one of four separate appeals taken from the order overruling the demurrers to the amended petition. The same issues are involved in all the appeals. We have decided those issues in Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501, and that opinion is adopted and incorporated herein as controlling and determinative of this appeal.
Following Worden v. Union Gas System, supra, the allegations of the plaintiff’s amended petition are sufficient to state a cause of action against this appealing defendant, Charles P. Trager.
The judgment is affirmed.
Parker, C. J., Price and Schroeder, JJ., dissenting. | [
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The opinion of the court was delivered by
Parker, C. J.:
The above cases have been consolidated upon request of the parties and by reason of their stipulation, filed with the clerk of this court, the only question involved at this stage of the proceedings in each case, raised by appellees’ motion to dismiss both appeals, is whether appellants have complied with the requirements of G. S. 1949, 60-3306 and perfected valid appeals from a judgment of the district court of Shawnee County vacating and setting aside an order of the State Corporation Commission granting the appellant motor carrier an extension of a certificate of convenience and necessity to transport certain petroleum products in areas already served, in whole or in part, by the appellee motor carriers.
The salient facts of record, on which the rights of the parties must stand or fall, cannot be disputed and will now be stated.
The district court entered its judgment vacating and setting aside the order of the State Corporation Commission on July 8, 1957. Thereafter, and on July 16, 1957, it promulgated and made its findings of fact and conclusions of law supporting such judgment. On August 1, 1957, appellant Darrell V. Thompson, d/b/a Thompson Transport, filed notice of appeal to this court with the clerk of the district court. Thereafter, and on August 7, 1957, appellant, The State Corporation Commission, filed its notice of appeal with the same official. Subsequently such clerk transmitted certified copies of both notices with proof of service endorsed thereon, together with certified copies of the judgment and order made by the court below to this court where separate appeals were docketed as cases Nos. 40,918 and 40,927.
On October 15, 1957, appellees filed their motion to dismiss the appeal in case No. 40,918, based on the premise appellant had taken only the first of the three steps required to perfect a valid appeal under G. S. 1949, 60-3306 and that the time in which to perfect such an appeal had long since expired.
Thereafter, and on December 12, 1957, all parties joined in the stipulation, to which we have heretofore referred, wherein it was stipulated and agreed that the subject matter and issues in cases' Nos. '40,918 and 40,927 were identical; that the motion to dismiss the appeal in No. 40,918 should be regarded as directed to and be considered as a motion to dismiss the appeal in No. 40,927; and that the determination of all matters and questions involved in No. 40,918 would be determinative of their rights in No. 40,927.
In view of the stipulation just referred to all facts hereinafter mentioned have reference to the record in No. 40,918. The notice of appeal and proof of service in such case appears on one sheet of paper. Resort to that instrument discloses that the notice is directed to the following parties:
“Groendyke Transport, Inc., P. O. Box 1068, Enid, Oklahoma; Holton Transport, Inc., Holton, Kansas; Arnold Veltman, Abilene, Kansas; Kansas Transport, Inc., McPherson, Kansas; Rapid Transit, Inc., Salina, Kansas; Earl Bray, Inc., Cushing, Oklahoma; and the Attorneys of Record, Erie W. Francis, Topeka, Kansas, Payne H. Ratner, Wichita, Kansas,' and Clyde E. Milligan, The State Corporation Commission for the State of Kansas.”
and that the proof of service, undated and unverified but signed by one of appellant’s counsel, reads:
“True copy of the above Notice of Appeal mailed at Topeka, Kansas, postage prepaid, upon all parties of record, properly addressed, via first class mail.”
. At this point it should be noted the previously related facts and what has just been quoted from the foregoing notice of appeal and proof of service affirmatively established certain matters not heretofore mentioned. They are: (1) That appellant Thompson made no proof of service of the notice of appeal by affidavit as required by G. S. 1949, 60-3306; (2) that service of the notice of appeal has not been acknowledged in writing by appellees or their attorneys of record; (3) that service of such notice has not been acknowledged by appellees or their attorneys of record by signing and returning a registered mail receipt card; (4) that no copy of such notice was personally served upon any of the appellees or their attorneys of record in the district court, i. e., Payne H. Ratner of Wichita, Kansas, and Erie W. Francis of Topeka, Kansas; and (5) that although the appellees Groendyke Transport, Inc., and Earl Rray, Inc., appear to have been parties upon whom personal service could not be made within the State of Kansas, such appellees were represented by attorneys of record upon whom such personal service could have been made within the state.
Finally, and for reasons to be presently mentioned, it should be stated that on January 6, 1958, the date on which he filed his type written brief, in response to appellees’ motion'to dismiss the-appeal, appellant Thompson filed a motion in.this court asking that he be permitted to amend his notice of appeal, pursuant to G. S. 1949, 60-3310, by adding a jurat to his proof of service. This motion, it is to be noted, was filed more than .three and one-half months after expiration of the date fixed by statute (G. S. 1949, 60-3309) for the perfection of his appeal.
Sections of the statute, material to a decision of the question presented by the motion to dismiss the appeal, have been previously noted and should now be quoted.
G. S. 1949, 60-3306 prescribes the manner in which .appeals can be perfected. Provisions here pertinent read:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; or, if such service cannot be made within the state, service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence, deposited in the mail, if their places of residence are known. Proof of such service shall be made by affidavit, . . .; and thereupon the appeal shall be deemed to be perfected.” (Emphasis supplied.)
G. S. 1949, 60-3309 fixes the time for perfection of an appeal. Provisions involved read:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken . . .” (Emphasis supplied. )
At the outset it can be stated the inviolate rule, under all our decisions dealing with the subject, is that where the record' discloses lack of jurisdiction by reason of noncompliance with the essential requirements of 60-3306 and 60-3309, supra, it is the duty of this court to dismiss an appeal. See Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, 298 P. 2d 333 and the numerous decisions cited at page 673 of its opinion.
In the face of a record, such as has been heretofore set .forth, particularly since 60-3306 provides, and our decisions (Hinkle v. Ward, 133 Kan. 516, 518, 519, 1 P. 2d 83) hold, that an appeal may be perfected by service upon attorneys of record for adverse parties, much could be said with respect to appellees’ contention that appellant’s failure to personally serve a copy of his notice of appeal upon appellees or their attorneys of record affords sound ground for dismissing the instant appeal. See, e. g., Thisler v. Little, 86 Kan. 787, 789, 121 Pac. 1123, where, in sustaining a motion to dismiss an appeal, based on similar grounds, it is said “Service by mail is permitted only when the appellee and his attorney of record cannot be served within the state and when their places of residence are known.” Even so, we are not required to pass upon that question and prefer to dispose of this case upon another premise.
Here it can neither be disputed nor denied that under the record presented appellant failed to make proof of service of his notice of appeal by affidavit within the time in which to perfect such appeal. Thus we come to the all decisive question involved. Did appellant’s failure to make any proof whatsoever hy affidavit of the service made by him of his notice of appeal on appellees or their attorneys of record comply with the mandatory requirements of 60-3306?
We think a negative answer to the question just posed is warranted by what is said and held in Polzin v. National Cooperative Refinery Ass’n, supra. Of a certainty it is compelled by the opinion on motion for rehearing and modification in Polzin v. National Cooperative Refinery Ass’n, 180 Kan. 178, 179, 302 P. 2d 1003, where it is said:
“G. S. 1949, 60-3306 provides three distinct steps to be taken to perfect an appeal to this court when the adverse party or his attorney of record reside in this state. The first is, by filing notice of appeal with the clerk of the trial court, stating the party filing the same appeals from the judgment, order or decision complained of to the supreme court. The second is, by personally serving a copy of the notice of appeal on all adverse parties whose rights are sought to be affected, or their attorneys of record. The third is, by making proof of such service by affidavit within the time prescribed by G. S. 1949, 60-3309 (Polzin v. National Cooperative Refinery Ass’n, supra), unless service of the notice of appeal is acknowledged in writing by appellee or his attorney of record, or unless service is acknowledged by the appellee or his attorney of record by signing and returning to the sender a registered mail receipt card acknowledging receipt of such notice thereon. (Von Der Heiden v. Williams’ Estate, 162 Kan. 233, 175 P. 2d 117.) It is unnecessary for the party making the appeal to file proof of service by affidavit where service is acknowledged in writing since, in our opinion, the acknowledgment of service in writing constitutes a waiver of proof of service under the statute.’’ (p. 179.) (Emphasis supplied.)
Conceding, as appellant suggests, the facts of the Polzin case are somewhat different does not warrant his contention the decisions in that case are distinguishable and have no weight as con trolling precedents. There the court was construing the force and effect to be given the requirements of the statutes (G. S. 1949, 60-3306 and 60-3309) now involved, hence the principles of law announced in those decisions are here applicable and decisive. There the court held that the three requirements prescribed by 60-3306 were mandatory and that compliance with all of them was necessary and required in order to perfect a valid appeal. And with specific reference to the last of the three requirements therein mentioned it is clear such decisions hold that, unless service of the notice of appeal is acknowledged in writing by an appellee or his-attorney of record, or unless service is acknowledged by the appellee or his attorney of record by signing and returning to the sender a registered mail receipt card acknowledging receipt of such notice, a litigant seeking to appeal from a judgment, order or decision does not perfect a valid appeal under 60-3306 unless he makes proof of service of his notice of appeal by affidavit within the time prescribed by 60-3309.
We believe the last mentioned rule of the Polzin decisions complies with the mandatory requirements of 60-3306, that it is sound, and that it should be adhered to. Therefore, based on what is said and held in those decisions and other decisions to which we have heretofore referred, we hold the motions to dismiss the involved appeals (Nos. 40,918 and 40,927) should be sustained and such appeals dismissed.
In reaching the conclusion just announced we have not overlooked the fact that appellant Thompson and, we may add, appellant State Corporation Commission, have each filed motions requesting that they be permitted to amend their notices of appeal, pursuant to G. S. 1949, 60-3310, by adding a jurat to their proof of service. We are not here disposed to write a thesis on the conditions and circumstances under which appeals, when once validly perfected, can be amended pursuant to the provisions of the foregoing statute. The trouble from appellants’ standpoint is that such statute has no application unless a valid appeal has been perfected. See McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 115, 122 P. 2d 787; Fruit v. Stacy, 168 Kan. 632, 636, 215 P. 2d 140; Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, 767, 67 P. 2d 564; Klemenc v. Klemenc, 164 Kan. 649, 192 P. 2d 171. See, also, Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, 677, 298 P. 2d 333, where it is said an affidavit of proof of service of a notice of appeal, filed more than two months after the date of the' judgment, was ineffective with respect to the perfection of the appeal. Here, as we have seen, no valid appeal was perfected within the time prescribed by 60-3309. For that reason appellants’ motions to amend their notices of appeal cannot be sustained. - :
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiffs commenced this action in McPherson County against the defendant Mobil Crude Purchasing Company, Inc., by filing a petition alleging that they were the owners and entitled to receive one-fourth of the royalty oil runs from real estate located in Butler County; that such defendant was the owner of an oil and gas lease and was taking and receiving the oil produced from the described premises; and that since October 29, 1955, defendant, although demand had been made upon it, had failed and refused to pay plaintiffs their proper share of the amount realized from the sale of such oil runs, amounting to $50 per month, for all of which they prayed judgment.
After service of summons the defendant filed a motion stating that it was appearing before answer, pursuant to G. S. 1949, 60-418, and requesting an order of the court substituting James LeRoy Young and Harriet Young as parties defendant in the action. In support of this request such motion stated that there was a controversy between plaintiffs and the Youngs as to who was entitled to the proceeds from the sale of a one-fourth royalty interest of the oil and gas then being purchased by Mobil from the property described in the petition; that Mobil had no interest in the subject matter of the action other than to pay the moneys due to the proper parties for the crude oil attributable to such undivided one-fourth royalty interest, but that due to the conflict of interests it could not safely pay out such money; that Mobil had been running oil from the tract in question and there had been accumulated for the period November 1,1955, to July 1,1956, the sum of $322.79, attributable to such one-fourth royalty interest, which sum it had been holding in suspense and would so hold the same until further orders of the court; and that in addition to such sum additional sums would accumulate from time to time as oil from the involved premises was sold.
Based on the allegations of its motion Mobil prayed for an order substituting James LeRoy Young and Harriet Young as parties defendant in lieu of movant and a further order directing the disposition of the moneys held in suspense, as well as any other moneys which might accumulate during the pendency of the action.
After a hearing on the foregoing' motion the court ordered that the Youngs appear in the action on or before twenty days and either set up or relinquish their claims to the amount then in the hands of Mobil, attributable to the one-fourth royalty interest in the described property and to all additional sums which in the future might be attributable to such royalty interest, and ordered Mobil to pay all such sums to the clerk of the court until further orders. In addition such court directed that a copy of its order be served upon the Youngs by either personal or resident service by the Sheriff of Butler County, such service to be made within five days.
Following service of the order upon them the Youngs filed a motion wherein they appeared specially and moved the court to quash the pretended service of summons upon them for reasons (1) the court had no jurisdiction to try the cause by virtue of the venue of the action and (2) the court was without jurisdiction of the moving defendants or the subject matter of the action.
When the last mentioned motion was overruled the substituted defendants were granted twenty days in which to answer or plead. Thereafter plaintiffs filed an amended petition, the pertinent portions of which read:
“4. That the defendant Mobil Crude Purchasing Company, Inc., operates a crude oil pipe line gathering system and has been taking and transporting to its refinery all of the oil produced from the following described real property situated in Butler County, Kansas, to wit: (describing it), and by reason thereof is obligated to pay to the owners of the leasehold and the owners of the minerals in and under said property the value in money of that part and proportion of the oil so taken which it attributable to such owners.
“5. That the plaintiffs are the sole legal heirs of G. A. Suits who was on February 3, 1938, the legal owner of an undivided one-fourth interest in and to all of the above described property and in actual possession thereof. That on February 3, 1938, G. A. Suits and Linnie Suits, his wife, conveyed such one-fourth interest to Clyde R. Brown and Ella Brown by deed which deed was thereafter recorded in the office of the Register of Deeds of Butler County, Kansas, in Book 178 of Deeds at page 174 which deed is made a part hereof by reference. That said deed contained the following exception and reservation, to wit:
“ ‘Excepting and Reserving to the Grantors, G. A. Suits and Linnie Suits their undivided interest in the oil, gas, and other minerals in and under the North Half of the Southwest Quarter (N/2 SW/4) of Section Ten (10) in Township Twenty-seven (27) South, in Range Four (4) East of 6th P. M. Aforesaid for and during their natural lives.’
“6. That G. A. Suits died intestate at Augusta, Kansas, on October 29, 1955, and that no probate proceedings were had concerning his estate. That said G. A. Suits was survived by his widow, Linnie Suits, and by his two children, Paul A. Suits and Mabel Burlingame, and that he had no other children or child or children of any deceased child. That the plaintiffs as the legal heirs of G. A. Suits, deceased, inherited and have owned from the date of his death the minerals reserved and excepted from such transfer during the life of Linnie Suits.
“7. That the defendant, Mobil Crude Purchasing Company, Inc., has from the death of G. A. Suits to November 30, 1956, received oil attributable to said reserved and retained mineral interest of the value of $483.95 and has deposited such sum of money with the Clerk of the District Court of McPherson County, Kansas, in this action for distribution and payment by order of the court to the persons entitled to such money.
“8. That the defendants James LeRoy Young and Harriet Young purchased the property conveyed by G. A. Suits and Linnie Suits to Clyde R. Brown and Ella Brown and now own the same, but that such purchase and ownership is subject to the exception and resemation set forth in paragraph 5 hereof. That said James LeRoy Young and Harriet Young claim to be entitled to receive the said $483.95 deposited with the Clerk of this Court.
“9. Plaintiffs allege that the pretended claims of James LeRoy Young and Harriet Young to the $483.95 on deposit in this court are wholly without merit for the reason that the grantees and their assigns in said deed dated February 3, 1938, were not to receive the one-fourth of the mineral until both G. A. Suits and Linnie Suits should die. Linnie Suits is still living and said exception and reservation will continue in effect until her death.
“Wherefore, Plaintiffs pray judgement that they are the owners of the $483.95 paid to the Clerk of this Court by Mobil Crude Purchasing Company, Inc., and that such sum be forthwith disbursed to them; and that the defendants James LeRoy Young and Harriet Young have no interest in said sum of money and that the costs of this action be taxed to the last named defendants.” (Emphasis supplied.)
Upon the filing of the amended petition the Youngs filed a motion requesting that plaintiffs be directed to make that pleading more definite and certain in certain particulars. This motion was overruled in its entirety and the substituted defendants were granted ten days in which to plead. Within the time granted the substitute defendants filed a demurrer, one ground of which was based upon the premise the court had no jurisdiction of the person of such defendants nor of the subject of the action. After a hearing the demurrer was sustained on such ground. Thereupon plaintiffs perfected an appeal from that ruling and bring the case to this court under specifications of error charging that the trial court’s action in sustaining the demurrer on the ground stated was erroneous.
At the outset it should be stated that in this jurisdiction a petition is demurrable if it appears on its face that the trial court has no jurisdiction of the subject matter of the action. (See G. S. 1949, 60-705, First.) That, in our opinion, is the decisive question involved in this case.
From an examination of the record it appears the trial court’s action in sustaining the demurrer was based on the ground that under the allegations of the amended petition it had no jurisdiction of the subject of the action because of the provisions of the Laws of 1953, Chapter 276, Section 1, now G. S. 1955 Supp., 60-501, which read:
“Action for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next section: First — For the recovery of real property, or of any estate or interest therein, or any estate or interest created hy an oil, gas or mineral lease or any oil or gas royalty, or for the determination in any form of any such right or interest, or to bar any defendant therefrom . . ." (Emphasis supplied.)
Looking through form to substance it is clear from allegations of the pleading just mentioned, particularly those heretofore underlined for purposes of emphasis, that this was an action (a) for the recovery of an interest created by an oil, gas or mineral lease; (b) for the determination in some form of such right or interest; and (c) to bar the appellees from any right or interest therein. With the amended petition construed as just indicated we have no difficulty whatsoever in concluding that the trial court’s action in sustaining the demurrer to the amended petition was proper and must be upheld.
In reaching the conclusion just announced we have rejected, not overlooked, several contentions advanced by appellants in support of their position. One, which should be specially treated, is that the money alleged to have been due from Mobil for accrued oil runs is the subject of the action. Due to legislative fiat this contention lacks merit and is not debatable. See Laws of 1953, Chapter 276, Section 2, now G. S. 1955 Supp., 60-502, definitely indicating that in an action such as is here involved the interest created by the oil, gas or mineral lease is the subject of the action. Other contentions, although interesting, need not be labored. It suffices to say, in a general way, that they are all based upon the erroneous concept this action is not one to recover an estate or interest created by an oil, gas or mineral lease or an oil or gas royalty, or for the determination on any form of such right or interest, or to bar any defendant therefrom, and for that reason cannot be upheld.
Finally it is argued, that having been substituted as defendants in the action pursuant to the provisions of G. S. 1949, 60-418, the appellees are barred and estopped from denying the jurisdiction of the court over the money involved after Mobil had specifically asked the court to exercise jurisdiction over such money and had paid it into court. We are cited to and know of no authorities supporting this position. Moreover, there are two short and simple answers thereto. In the first place the parties to an action cannot waive the jurisdiction of the court as to subject matter of the action (In re Estate of Freshour, 177 Kan. 492, 499, 500, 280 P. 2d 642; City of McPherson v. State Corporation Commission, 174 Kan. 407, 412, 257 P. 2d 123; Behee v. Beem, 156 Kan. 115, 118, 131 P. 2d 675). In the second, once the amended petition was challenged by a demurrer, based on lack of jurisdiction of the subject matter, it was not only the trial court’s right but its duty to sustain that challenge if such appeared on the face of the petition.
Having disposed of all matters subject to appellate review and finding nothing to warrant a reversal of the trial court’s ruling on the demurrer its judgment must be and is hereby affirmed.
It is so ordered.
Schroeder, J., not participating. | [
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|
The opinion of the court was delivered by
Wertz, J.:
This was an action for damages arising out of an automobile accident. From a judgment for the defendant, plaintiff appeals.
The petition alleged that plaintiff (appellant), Larry LeRoy Hicks, on February 16, 1955, at about 8:00 a. m., was driving his automobile south on U. S. highway No. 281 at a point approximately twelve miles north of St. John, and that defendant (appellee), Theodore Appl, was driving south on the same highway approximately 400 feet ahead of him; that defendant “cut over” into the left-hand lane and slowed down as he approached the intersection of Kansas highway No. 19 and U. S. 281; that plaintiff continued in the right-hand lane of U. S. 281 and proceeded to pass defendant as both vehicles neared the intersection, but that defendant, .without warning, turned back in front of plaintiff, who applied his brakes and, in an attempt to avoid a collision, swerved toward the right-hand ditch, where his vehicle overturned, resulting in damage to the automobile and personal injury to the plaintiff. It was further alleged that defendant was guilty of negligence in failing to observe the road and the presence of other vehicles on it, in failing to signal before turning back onto U. S. highway No. 281, in driving his car in front of plaintiff, without warning, and in driving his car on the wrong (left-hand) side of the highway.
Defendant answered, alleging that the accident was caused solely by plaintiff’s own negligence. Plaintiff replied with a general denial.
After presentation of the evidence by the respective parties, the cause was submitted to the jury under the instructions of the court, to which there was no objection. The jury returned a general verdict for the defendant, and in answer to special questions submitted by the court found that (1) plaintiff immediately prior to the accident was driving at a speed of seventy-five miles an hour; (2) plaintiff’s speed was not reasonable and prudent under the circumstances; (3) plaintiff’s speed, under the circumstances, was unreasonable and contributed to the accident; (4) plaintiff was 400 to 500 feet behind defendant’s vehicle at the time defendant turned back onto U. S. highway No. 281; (5) defendant was guilty of negligence in failing to continue his turn onto Kansas highway No. 19 and in. not awaiting an opportunity to return to U. S. 281, and plaintiff saw or, by the exercise of care, should have seen defendant’s act of negligence in time to prevent the accident.
Following the overruling of plaintiff’s post-trial motions, he appeals, contending that the verdict is contrary to the evidence and the answers to the special questions are inconsistent with each other and with the general verdict. This requires a brief review of the evidence.
Plaintiff testified that on the morning in question he was following defendant south on U. S. highway No. 281 at a speed of approximately seventy miles an hour; that he and the defendant passed two trucks about 500 to 600 yards north of the intersection of Kansas highway No. 19 with U. S. 281; that, after passing the trucks, defendant continued south in the left-hand lane of U. S. 281 and plaintiff pulled back to the right-hand lane. Both plaintiff and defendant gradually slowed down as they neared the intersection; defendant then attempted to make a left-hand turn onto K. 19 without giving any signal or indication of his intention to do so; plaintiff decreased his speed to about sixty-five or sixty miles an hour. When plaintiff reached a point about 200 feet from the intersection, defendant turned sharply back onto U. S. 281 in front of plaintiff, who, in turn, in an attempt to avoid a collision, ran his car into the ditch on the right-hand side of the road. Plaintiff further testified that his brakes were in excellent condition and both highways in question were blacktop; that he had 200 feet in which to stop after he discovered defendant turning back onto the highway, but that he gave defendant no signal to indicate his presence; that he first observed defendant start to slow down to make the turn onto K. 19 when he was 400 to 500 feet behind him.
The defendant testified that he started to make a left-hand turn onto K. 19, but after discovering it was not his proper road started to turn back onto U. S. 281; that he gave no signal of his intention to make the turn, as he did not observe any automobiles behind him other than a red pickup truck about one-half a mile away; and that he did not see plaintiff’s vehicle until after the accident.
Mrs. Ficken testified that at the time of the accident she was sitting in the back seat of defendant’s car and as defendant started to turn back onto U. S. 281 she looked back and said, “Hold it, Ted, there’s a car coming”; that plaintiff’s automobile was then about 450 feet to the rear of defendant’s car and traveling at a speed of between eighty and eighty-five miles an hour; and that at no time did she hear plaintiff blow his horn or indicate in any way his desire to pass.
It is a well-established rule in this state that the question of whether a plaintiff is guilty of contributory negligence must be submitted to the jury, if the facts are such that reasonable minds might reach different conclusions thereon. (McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Hukle v. Kimble, 169 Kan. 438, 219 P. 2d 434.) No useful purpose would be gained in reiterating all the evidence presented at the trial. It is sufficient to note that plaintiff testified he had slowed down to sixty-five or sixty miles an hour and was about 200 feet from the intersection when defendant pulled back onto U. S. 281; that the sheriff who investigated the accident testified the total distance traveled by plaintiff’s car with the brakes on indicated a high rate of speed; and that one of defendant’s passengers testified plaintiff was traveling from eighty to eighty-five miles an hour just before the accident. There was sufficient evidence to sustain the jury’s findings. Indeed, it may fairly be said .that this was a fact case; that the questions of defendant’s negligence and plaintiff’s contributory negligence were questions of fact properly submitted to the jury; and that in view of the record the jury’s verdict and findings cannot be disturbed.
Plaintiff further contends that the special finding of defendant’s negligence cannot be reconciled with the finding that plaintiff’s failure to drive at a reasonable rate of speed was a contributing cause of the accident. The fact that plaintiff may not have been required to anticipate defendant’s making a sharp turn back onto the highway has little or no bearing on the question of plaintiff’s contributory negligence as found by the jury. We can see no basis for the claim of inconsistency and can find no merit in either of plaintiff’s contentions.
Plaintiff also contends that the trial court erred in refusing his request, made in the absence of the jury, to question the jurors on the voir dire examination with regard to their pecuniary interest in a certain insurance company. There is nothing in the record to indicate that insurance was in issue and nothing to show that the substantial rights of plaintiff were prejudiced or that the trial court abused its discretion in refusing his request.
Plaintiff finally contends that defendant’s counsel, in his closing argument, made prejudicial remarks regarding plaintiff’s failure to call a witness who had been subpoenaed. We have examined the record and find no such remarks nor mention of any proceedings in relation thereto. Counsel for plaintiff candidly admits an honest disagreement as to whether he objected to the statement in question. Since there is no record before us on this point, there is nothing for us to review.
In view of what has been said, the judgment of the trial court is affirmed.
It is so ordered.
Jackson, J., not participating. | [
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The opinion o£ the court was delivered by
Parker, C. J.:
This was an action for the partition of real property owned by tenants in common. The appeal is from an order overruling plaintiff’s exceptions to the report of the commissioners; the approval of that report, wherein the real estate was partitioned among the respective owners in kind; and that part of the judgment partitioning and assigning such real estate to the parties in conformance with such report.
Plaintiff, B & S Enterprises, Inc., commenced this action by filing a petition in the district court of Sedgwick County containing two causes of action.
The first cause of action alleged that it was the owner of an undivided six-eighths interest and that each of the defendants (Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand) owned an undivided one-sixteenth interest in and to the South Half (S/2) of the Southwest Quarter (SW/4) of the Southwest Quarter (SW/4) of Section 4, Township 27, Range 1 East of the 6th P. M., Sedgwick County, Kansas, except the right-of-way of the Atchison, Topeka and Santa Fe Railway and North Wichita Drainage Canal and easements of record and the East thirty (30) feet of said South Half (S/2) of the Southwest Quarter (SW/4) of the Southwest Quarter (SW/4) of Section 4, Township 27, Range 1 East of the 6th P. M., Sedgwick County, Kansas; that such property was susceptible of being partitioned; and that it desired to have and own its share therein severalty.
The second cause of action alleged that the property sought to be partitioned and the improvements thereon were leased to various persons, companies and corporations and that pending the final determination of the case a receiver should be appointed for the purpose of collecting rents, paying taxes and maintaining such property, all in accord with the orders of the court.
In the prayer of the petition plaintiff asked that partition of the real estate be made according to the respective interests of the parties or if partition could not be made without manifest injury that it be appraised and sold and for the appointment of a receiver.
In passing it is to be noted proceedings had in the court below with respect to the second cause of action are not involved on this appeal and require no further mention.
So far as pertinent to the issues here involved it should be stated defendants’ answer discloses they were each the owners of a one-sixteenth interest in the involved real estate, alleged such property was susceptible of partition in kind among the parties, and that they would be placed at a financial disadvantage if it were sold, and prayed for the appointment of commissioners with directions to allot them particular portions of the property.
The reply deals with allegations of the answer, heretofore noted as of no consequence to the issues, and prays that the property be partitioned in accord with the laws of the State of Kansas.
On May 31, 1956, the case came on for trial upon the issues joined by the pleadings before the Hon. Howard C. Kline, judge of the district court of Sedgwick County, division No. 2, where, after introduction of evidence and arguments of counsel, the court found that the interests of the respective parties to be as set forth in such pleadings; that the real estate therein was subject to partition and that commissioners should be appointed to make partition as provided by law. In the same order and judgment the court appointed Richard R. Santee, L. W. Roberts and Nestor Weigand, as commissioners, directing them to make partition of the real estate and personal property among the parties according to their respective interests, if such division could be made without manifest injury, but if in their opinion and judgment partition could not be so made then to make a valuation and appraisement of the property and file their report with the court. Such order and decree also directed the commissioners to take and subscribe to an oath as provided by law before entering upon their duties and provided that after doing so a certified copy of such order should be delivered to each commissioner, which order would be his authority to proceed to make partition of the property as therein directed.
Shortly after making the foregoing order and decree defendants filed a motion, stating that they had a family community interest in the property and asking that the commissioners be directed to consider such interests as a unit in deliberations concerning partition of the property as theretofore directed by the court. The court’s ruling on this motion reads:
That said motion should be sustained in that the Commissioners, in addition to the instructions heretofore given them by the Court, are hereby instructed to report back to the Court all methods and plans for the partition of the property which they deem feasible and which may include a plan for the grouping of the respective 4/16ths interests of the defendants in a contiguous area so as to constitute a whole.”
Some three months after their appointment the commissioners filed their final report with the court wherein they found that, in their considered and unanimous judgment, partition in kind of the real and personal property in the estate could be made among the parties according to their respective interests without manifest injury to the property or the parties in the manner therein described. This was a lengthy document which, it may be added, when carefully read and examined disclosed the expenditure of a great amount of time, work and effort on the part the commissioners, as well as the consulting engineer and the technical adviser referred to in the first paragraph of the findings of fact to be presently mentioned. Such report contained the formal report by the commissioners as well as findings of fact made by them. In addition it included a detailed description of each of the buildings located on the property, photographs thereof, and a detailed description of equipment located in and a part thereof. It also set forth much additional information, all with respect to such property, including lease expiration dates, monthly rentals, surveys and financial statements.
From what has been heretofore stated it is obvious that limits of time and space preclude quotation or detailed reference to every thing covered by the complete report of the commissioners. However, in view of their importance, we have decided to attach copies of the formal report and findings of fact to this opinion as appendixes, identified as “A” and “B” respectively.
Shortly after the commissioners’ report was returned the plaintiff filed exceptions thereto which read:
“Comes Now B & S Enterprises, Inc., plaintiff herein and excepts and objects to the report of the commissioners filed in the above entitled matter for the reason that said report and partition of said real estate ipsofar as the plaintiff is concerned is inequitable and unjust. That said commissioners have failed to properly regard and consider valuations, income, leases, frontage, future development of the area, taxes and various other factors involving an equitable partition. That the area partitioned to the defendants far exceeds a one-fourth (11) interest in the area sought to be partitioned as to size and valuation and constitutes an inequality in the division made insofar as plaintiff is concerned. That if such partition is approved by the court manifest injury wll result to the plaintiff herein. Plaintiff alleges that said report should be rejected and set aside by the court and new commissioners appointed in accordance with General Statutes of Kansas, 1949, and supplements thereto, Section 60-2108.”
Following the filing of the foregoing exceptions the issues raised thereby were presented to and disposed of by the Hon. Henry E. Martz, judge of the district court of Sedgwick County, division No. 5, in a full and extended trial. Upon hearing all evidence, arguments of counsel and after taking the case under advisement such court ultimately notified attorneys for the parties that it had viewed the property, reviewed and considered the record and briefs of counsel and found that plaintiff had failed to show good cause why its exceptions and objections to the report of the commissioners should be sustained.
Thereupon, according to pertinent portions of the journal entry, approved by counsel for all parties, the court overruled plaintiff’s motion for a new trial, approved the report of the commissioners and rendered judgment partitioning and setting aside to Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand, Parcels “A” and “B” of the real estate, describing such Parcels as they are described in the report of the commissioners (See Appendix “A”) and partitioning and setting aside to B & S Enterprises, Inc., Parcel “C” of the real estate, describing that Parcel as it is described in such report. (See Appendix “A.”) In addition the court found that such tracts of land were partitioned to the parties subject to utility easements and present utility lines wherever located and that the owners of each of such tracts were granted the right to use and extend the present rail facilities.
For purposes of giving our readers a better understanding of the disposition made of the involved' property, under the commissioners report and the foregoing judgment, we include in this opinion an aerial photograph which was introduced by plaintiff as a part of its evidence in the court below. In giving consideration to this photograph it must be remembered it was taken out of an airplane, other than at a vertical position, thus giving a distorted view as to distances and is not to be regarded as accurately reflecting the metes and bounds of Parcels “A,” “B” and “C” as described in Appendix “A” and the journal entry of judgment. It should also be kept in mind that identifying numbers appearing on certain buildings shown in the photograph are not all inclusive as to buildings located on the premises, e. g., at least four of the buildings located on Parcel “C,” some of them being the largest buildings on that tract, are not numbered, while an open lumber storage building and a closed lumber shed, located on Parcel “A” are not identified by number.
At the outset it should be stated there is no question regarding the force and effect of the provisions of our statute relating to a partition proceeding such as is here involved.
G. S. 1949, 60-2105 provides that upon the making of a partition order the court shall appoint three commissioners to make partition into the requisite number of shares and that for good and sufficient reasons it may direct such commissioners to allot particular portions to any one of the parties.
G. S. 1949, 60-2107 directs the commissioners to make partition of the property among the parties according to their respective interests, if 'such partition can be made without manifest injury, but if such partition cannot be so made, they are to make a valuation and appraisement of the property, valuing each tract separately where there are more than one; and directs a prompt report of their proceedings to the court.
G. S. 1949, 60-2108 permits any party to file exceptions to the report of the commissioners, and provides the court may for good cause set aside such report and appoint other commissioners or refer the matter back to the same commissioners.
G. S. 1949, 60-2114 gives the court full power to make an order not inconsistent with other provisions of the statute relating to partition that may be necessary to make a just and equitable partition between the parties, and secure their respective interests.
It may be stated further that the foregoing sections of the statute give the court having jurisdiction of a partition proceeding full power and authority over partition commissioners, including the right to hear and determine exceptions to their report. And added they do not contemplate a trial de novo of the propriety of the action of a trial court in either refusing to set aside a report of that character or in setting such a report aside for good cause on appellate review. Indeed our decisions definitely disclose action of that nature rests so much in the sound discretion of a trial court that it will not be disturbed on appeal unless the record makes it appear such action was wholly unwarranted and clearly amounts to abuse of discretion.
See Sawin v. Osborn 87 Kan. 828, 832, 126 Pac. 1074, where, after pointing out the theory of law is that property will be partitioned among the parties where it can be equitably done and is not to be sold and the proceeds to be divided except where it is not susceptible of an equitable partition, it is said:
“. . . The court is vested with the discretion and power to determine whether it is equitable and practicable to give each his share, and it may, for good and sufficient reasons, allot particular portions of the property to any one of the parties.” (p. 832.)
See, also, Johnson v. Burns, 160 Kan. 104, 159 P. 2d 812, where it is held:
“In an action to partition real estate the trial court has power to make any order necessary to make a just and equitable partition between the parties. The record in this case is examined and it is held that there is nothing in the record to justify this court in holding that the trial court abused its discretion.” (Syl. ¶3.)
And, at page 110 of the opinion, indicated that this court would not interpose its judgment of what is fair and equitable for that of the trial court.
And see Peterson v. Peterson, 173 Kan. 636, 251 P. 2d 221, where, dealing with the extent of the trial court’s power and authority in partition cases, it is held:
“In an action to partition real estate under G. S. 1949, 60-2101 to 60-2114, it is held that in administering the provisions of the pertinent sections of the code, the trial court has the same powers as were exercised by chancery courts under equity practice, including full power to settle all questions involved on just and equitable principles.” (Syl. ¶ 4.)
For other cases dealing with the same subject see Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184; Knutson v. Clark, 169 Kan. 205, 217 P. 2d 1067.
Supplementing the facts as heretofore related it should be noted at this point that no special findings or conclusions were requested and that the court found generally for defendants and against the plaintiff so far as the judgment relates to the real question involved in this case, i. e., whether, after a trial of the issues raised by the exceptions to the commissioners’ report, the trial court erred in overruling such exceptions and in approving such report and partitioning the property accordingly.
Rules applicable to the disposition of claims of error, presently to be mentioned, relating to judgments where the findings of the court are general in nature are well-established and should now be mentioned.
One is that a general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced. (Manville v. Gronniger, 182 Kan. 572, 322 P. 2d 789; Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567.)
Another is that a general finding by a trial court raises a presumption it found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, 157, supra; and cases there cited; Manville v. Gronniger, supra.)
Still another is that findings of fact necessarily embraced in the general judgment rendered by the trial court, will not be disturbed on appeal if there is some evidence to sustain it. (Stratton v. Hawks, 43 Kan. 538, 23 Pac. 591; Dryden v. Rogers, 157 supra.)
Other rules of more general application are equally pertinent and should be noted.
The first of these is that a presumption of validity attaches to a judgment of the district court until the contrary is shown, and before this court will set aside a judgment it must affirmatively be made to appear by an appellant that the judgment is erroneous. (Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079; State, ex rel., v. Henderson, 179 Kan. 142, 292 P. 2d 718; Vaughn v. Taylor, 180 Kan. 190, 302 P. 2d 1004; In re Estate of Snyder, 181 Kan. 222, 225, 310 P. 2d 944.)
The second is that a verdict or finding of fact made by the trier of the fact and supported by evidence will not be disturbed on appeal. (Boggs v. City of Augusta, 180 Kan. 831, 308 P. 2d 72; Hillebrand v. Board of County Commissioners, 180 Kan. 348, 351, 352, 304 P. 2d 517; Hale v. Ziegler, 180 Kan. 249, 303 P. 2d 190; Brent v. McDonald, 180 Kan. 142, 151, 300 P. 2d 396.)
The third is that the determination of the weight and credence to be given oral evidence is exclusively the function of the trier of the facts and not a matter of appellate review. Rupp v. Rupp, 171 Kan. 357, 233 P. 2d 709.)
Turning to plaintiff’s claims of error it is first urged the trial court abused its discretion in upholding the report of the commissioners when the evidence conclusively showed they were influenced by the appointing judge. There are at least two sound reasons why this contention cannot be upheld. In the first place our independent examination of the record discloses it does not sustain plaintiff’s position as to the state of the evidence. In the next all contentions respecting that matter were presented to the court (an entirely different judge presiding) which resolved all questions of-influence against plaintiff. That finding, which we pause to note finds support in the evidence, was necessarily embraced in the general judgment and, under the decisions to which reference has been previously made, cannot be disturbed on appellate review.
Next, directing our attention to the fact the property in question is located in an industrial area, it is argued parking facilities were not properly considered by the commissioners in making their report. Resort to the record discloses this question was submitted to the trial court, during the trial of the issues raised by the exceptions, on' conflicting evidence; hence, since it must be regarded as having been determined contrary to plaintiff’s position under the general judgment, it is not subject to review.
Another contention is that manifest injury results from partition to an industrial area when the value of an area partitioned into three tracts is much less after partition than the whole area prior to partition. Arguments advanced on this point are fallacious and will not be here labored because they are based entirely on testimony, adduced by plaintiff, touching the value of the involved twenty acres as a naked tract and refuse to recognize other evidence respecting the value of such property including the land, buildings and equipment, at the time the commissioners made their report and the court viewed the premises.
Next it is claimed the trial court erred in adopting the commissioners’ report and in partitioning the involved tracts of land to the parties,' subject to utility easements and present utility lines wherever located and granting the parties the right to use and extend present rail facilities, without first determining the location of such utility lines and rights on existing railroad facilities. No authorities requiring action of that character are cited by plaintiff and we have difficulty in following arguments advanced in support of this action. Under such circumstances the rule announced by this court in McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074, is applicable. There it is held:
. ■ “Where, in connection with a contention the trial court erred, no citation of authorities is given in support, the supreme court may well conclude that counsel, after diligent search, has not been able to find any, and may affirm the judgment.” (Syl. ¶ 2.)
Finally it is contended the court’s action in approving the report of the commissioners and in partitioning the property in kind, in conformity with such report, results in manifest injury to the plaintiff. The trouble with all arguments advanced on that point from plaintiffs standpoint is that, under the provisions of our statute and decisions construing their force and effect, (1) the trial court was vested with full and complete discretionary power and authority to hear and dispose of all questions of fact relating to that issue, as well as all issues of fact pertaining to whether good cause had been shown by plaintiff for the sustaining of its exceptions to the report of the commissioners; (2) the general finding made by the trial court in the judgment determined all controverted questions of fact, relating to such issues and in support of which' evidence was introduced at the trial, against the plaintiff; (3) appellate review, under the existing facts and circumstances, is limited to whether the trial court’s action with respect to such issues is wholly unwarranted and clearly amounts to abuse of discretion. Nothing would be gained by detailed reference to the evidence of record or the arguments made by counsel respecting the questions now under consideration. It suffices to say our examination of the record discloses ample evidence to sustain and uphold the trial court’s judgment that the property could be partitioned in accord with the report of the commissioners without manifest injury and that the plaintiff had failed to show good cause why its exceptions and objections to such report should be sustained. It follows the trial court’s action with respect to such matters cannot be held to be wholly unwarranted or based on abuse of discretion.
What has been heretofore stated and held compels an affirmance of the judgment.
It is so ordered.
Robb and Jackson, JJ., not participating.
APPENDIX “A”
REPORT OF COMMISSIONERS
B & S Enterprises vs. Sam E. Rudd, Elenore Rudd, Leonard A. Levand, & Celia Levand.
To: Honorable Howard Kline
The undersigned commissioners, each of them, have made a study of all of the physical property described herein for the purpose of partition in kind. Each of the commissioners has made a personal inspection of the interior and exterior of each of the buildings. The equipment which is part and parcel of this estate has been examined by the commissioners, and expert opinion with respect to operational equipment has been sought by them as a guide to the values of partition.
The realty was carefully examined, with particular attention given by the commissioners to the use to which it is put, the surrounding properties, public zoning which could effect the estate, and the income as derived from present use, as well as income potential to its highest and best use.
It is the considered judgment of the commissioners in unanimity, that partition in kind of the real and personal property in this estate, among the parties, according to their respective interests, can be done without manifest injury to the property or the parties in the following manner:
Parcels “A” and “B” (so designated on attached survey) shall be partitioned to Sam E. Rudd, Elenore Rudd, Leonard Levand, and Celia Levand, and shall represent a full interest to them of one fourth of the whole estate, more particularly described as follows:
Parcel “A” — The south half of the southwest quarter of the south west quarter of Section 4, Township 27 South, R. 1 E. of the 6th P. M., lying east of the center line of the North Wichita Drainage Canal right of way, except the north 16 feet thereof; the above description containing 3.1 acres, more or less, exclusive of the right of way for 21st Street.
Parcel “B” — A tract in the south half of the southwest quarter of the southwest quarter of Section 4, Township 27 South, R. 1 E. of the 6th P. M., described as follows: Beginning 359.8 feet east of the southwest corner of said Section 4, thence north at an interior angle of 90 degrees 20', 396.9 feet, thence east at an interior angle of 269 degrees 55', 209.5 feet, thence north at a right angle, 264.5 feet, more or less, to the north line of said south half of said southwest quarter of said southwest quarter, thence west on said north line, 517 feet, more or less, to the east right of way of the A. T. & S. F. R. R., thence southerly along said right of way to the south line of said Section 4, thence east to the point of beginning, containing 5.4 acres, more or less, exclusive of the right of way for 21st Street.
Parcel “C” shall consist of all other lands in this estate not specifically described above, and shall be partitioned to B & S Enterprises, Inc., and shall represent a full interest to it of three fourths of the whole estate, more particularly described as follows:
Parcel “C” described: All of the south Yz of the southwest }i of the southwest M of section 4, township 27, R. 1, E. of the 6th P. M., Sedgwick County, Kansas, except the right-of-way of the Atchison, Topeka and Santa Fe Railway and North Wichita Drainage Canal, easements of record, and the east 30 feet of said south half of the southwest M of the southwest }l of section 4, township 27, R. 1, E. of the 6th P. M., Sedgwick County, Kansas, except parcels “A” and “B” heretofore described.
All monies now in the hands of Fernella Fowler as a part of this estate shall be divided among the interests as they appear, as of the date of approval of this report by the court, after first making determination of all bills due and payable, and paying same. Real Estate and Personal taxes shall be pro-rated as between the parties as their several interests may appear, and such proration shall be based upon the amounts paid for Real and Personal taxes in 1955, unless the approval date of this partition shall fall after the 1956 taxes become a lien, in which case, the 1956 taxes shall be used as the basis for proration. Should the bills payable, plus the prorated taxes exceed the amount of monies, on hand in this estate on the effective date of this partition, then in that event all parties hereto shall pay into the court a sufficient amount of money to make up the deficit, according to their several interests.
Richard R. Santee,
L. W. Roberts,
Nestqr Weigand.
APPENDIX “R”
FINDINGS OF FACT
B & S Enterprises vs. Sam Rudd, et al.
Your commissioners have been guided by and have relied upon plats and other information furnished to them, which are made a part of this report. All buildings were measured by them to verify accuracy. K. O. Taylor, consulting engineer, was employed to make surveys which are a part of this report. Royal McShea, 655 North. Hillside, Wichita, Kansas, was employed to give technical advice with respect to the refrigeration equipment and its value. Mr. McShea has had long experience in the field of heavy refrigeration.
Particular attention was given by your commissioners to the tenants in each of the buildings on this estate, with due regard to the length of leases involved and the ability of the several parties to perform.
All avenues of ingress and egress by rail, pedestrian, truck or auto traffic have been long established and should continue by easement until the need shall cease. In this partition, the commissioners have carefully followed the center line of Topeka Avenue, extended, as well as the center line of a natural and long established street running east and west, and parallel to 21st Street.
Each part and parcel partitioned herein should be given to the several interests subject to utility easements, however, each parcel divided has access to all utilities without use of or need for the use of any other parcel. All parcels should be granted the right to use and extend rail facilities.
In making this partition, your commissioners have used the center lines of natural city streets as the dividing line. They have divided the property in such manner that all parts and parcels divided can be served by utilities of all kinds without crossing over or under, or interfering with any other part or parcel. Any part or parcel described in this partition cán be operated from now on without suffering loss of income, present or future, by reason of separation. All parts and parcels divided by this partition can be served by police and fire protection as well after the separation as before.
The partition as outlined by your commissioners has been based on good planning, with the burdens of future logical streets and drainage falling equally on all interests to this partition. If the whole of the area were to be stripped of the present buildings and platted for its highest and best use, no better plan of subdivision could be imposed upon this land than the plan of partition outlined herein.
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Nestor Weigand,
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff, Bordman Investment Company, a corporation licensed under the laws of the State of Missouri to engage in the automobile finance business, commenced an ordinary replevin action against the defendants, Willis D. Field and Pauline V. Field, residents of Johnson County, Kansas, in the district court of Johnson County on March 13, 1956, by filing a petition wherein it alleged, in substance, that it had a special ownership or interest in and was entitled to the immediate possession of a 1956 Buick automobile (describing it) under and by virtue of a chattel mortgage executed and delivered by James Watts, doing business as Watts Motor Company in Kansas City, Missouri (hereinafter referred to as Watts); that at the time of the execution of such mortgage Watts was the owner of such automobile and that that instrument had been filed of record in the office of the Recorder of Deeds of Jackson County, Missouri, on December 5, 1955, where it had remained of record ever since the filing date, unsatisfied and unreleased of record; that plaintiff was the owner and holder of such mortgage and entitled to all rights thereunder; that the conditions of the mortgage had been broken by Watts who had failed, neglected and refused to pay the amount named in the mortgage, to-wit: $2,950 on demand; that there was then due plaintiff from Watts under the terms of such mortgage, and a note evidencing the indebtedness secured thereby, the sum of $3,000.00; that the automobile described in the mortgage as security for the payment of such debt was then in the possession of defendants who wrongfully detained it and had refused to surrender the same to plaintiff and still refused to do so; and that by reason of the facts stated plaintiff demanded judgment against the defendants for the possession of such automobile and costs of the action.
Defendants’ second amended answer and cross-petition, verified by Pauline V. Field, consists of a general denial and additional allegations, designated as a further answer and cross-petition. Since, as will be presently disclosed, the case was submitted solely on plaintiff’s right to possession of the automobile no useful purpose would be served by reference to the cross-petition. However, the additional allegations of the answer serve the dual purpose of disclosing defendants’ claim with respect to the controversy as well as the trial court’s reason for submitting the cause as heretofore indicated and on that account are important. Limited strictly to matters pertaining to possessory rights of the parties such allegations read:
“4. That on December 28, 1955, said defendants negotiated with and purchased from Kansas United Auto Sales, Inc. a certain new automobile described as a 1956 model Buick Hardtop two door Riviera Coupe, Motor No. 14705266, for and in consideration of Three Thousand Ninety-five ($3,095.00) Dollars; that said automobile was delivered to these defendants at the place of James Watts, doing business as Watts Motor Co. in Kansas City, Missouri, Jackson County, so sold and delivered in the usual course of business and a Bill of Sale given to these defendants by Kansas United Auto Sales, Inc. by and through its manager, showing said automobile free from all incumbrances, a true and complete copy of which is hereto attached and marked Exhibit A; that at the time of said sale defendants assigned certificate of title on a 1952 Oldsmobile Motor No. R91630 to Kansas United Auto Sales, Inc. as a trade in on the said Buick automobile and delivered to Kansas United Auto Sales, Inc. a check drawn by Willis D. Field in the amount of Two Thousand Four Hun dred Sixty-three ($2,463.00) Dollars, representing Two Thousand Four Hundred Twenty-five ($2,425.00) Dollars on the purchase price of the Buick automobile and Thirty-eight ($38.00) Dollars Kansas Sales Tax, said check being attached hereto and marked Exhibit B. That all negotiations above mentioned were had at the place of business of Watts Motor Co., in Jackson County, Kansas City, Missouri; that the Bill of Sale, Certificate of Title on the said 1952 Oldsmobile and said check in the amount of Two Thousand Four Hundred Sixty-three ($2,463.00) Dollars above mentioned, were all delivered at the place of business of Watts Motor Co. in Jackson County, Kansas City, Missouri.
“5. That on March 13, 1956, said automobile was taken from these defendants without notice or demand by Bordman Investment Co. through this replevin action.
“6. That plaintiff at all times herein mentioned knew that James Watts, doing business as Watts Motor Co., and Kansas United Auto Sales, Inc. were engaged in the business of selling new and used automobiles to the general public; that plaintiff financed automobiles distributed and sold to the general public both through Watts Motor Co. and Kansas United Auto Sales, Inc. Plaintiff further knew at all times herein mentioned that automobiles in the possession of James Watts doing business as Watts Motor Co. or Kansas United Auto Sales, Inc., were being sold to the general public as free and clear of all encumbrances. Plaintiff further had full knowledge of the sale of said Buick automobile to these defendants as is set out above.
“7. That plaintiff knowingly and purposely allowed said automobile to be sold to these defendants as a new automobile free of encumbrances and then purposely and wrongfully brought an action in replevin against these defendants to recover the same.
“8. That by reason of the facts alleged above plaintiff does not have such an interest in said automobile which would allow plaintiff to defeat defendant’s claim and that plaintiff is estopped to claim any interest in said automobile; that these defendants are, therefore, entitled to recover said automobile . . .”
After the overruling of its demurrer to the foregoing answer plaintiff filed a long and complicated reply. In a general way it may be stated this pleading, assuming at all times that plaintiff was entitled to possession of the automobile in question by reason of its mortgage from Watts, contains recitals to the effect that under the facts and circumstances set forth in their answer, and others detailed at length in the reply, defendants had failed to comply with the laws of either Missouri or Kansas in purchasing the automobile and had acquired no valid title thereto, hence they had no legal defenses whatsoever which could defeat plaintiff’s recovery in the replevin action.
Following the filing of its reply plaintiff’s motion for judgment on the pleadings was overruled on the ground such pleadings disclosed issues of fact that must be determined from evidence.
Thereafter, either by permission or order of the court, the Commerce Trust Company, a corporation, intervened in the action and filed an answer to the petition. Nothing would be gained by detailing this pleading. For purposes pertinent to the appellate issues involved it suffices to say such answer contains a general denial of the allegations of plaintiffs petition; asserts that the Fields purchased and obtained possession of the automobile in the manner set forth in their answer; alleges that the Trust Company furnished such defendants the money with which to pay Watts the difference between the trade in value of the old automobile and the new automobile purchased from Watts; discloses that to secure payment of the money so advanced such defendants gave the Commerce Trust Company a chattel mortgage on the new automobile; and prays for judgment confirming title to the new automobile to be in defendants, subject only to the Trust Company’s mortgage. Plaintiff’s demurrer to the intervener’s answer was overruled. Thereupon plaintiff filed a lengthy reply to such answer. For all purposes here important it may be said this pleading contains denials and allegations similar in form and substance to those set forth and relied on by plaintiff in its reply to the defendant’s answer.
With issues joined as related the cause came on for trial, at the commencement of which the court, on its own order announced that under authority of Upton v. Pendry, 109 Kan. 744, 202 Pac. 73, it was directing that only the portion of the case concerning the plaintiff’s right to possession be tried at that time and that any matter having to do with defendants’ counterclaim for damages be deferred until the determination of the question of right to possession only. Whereupon, the court having previously indicated the pleadings disclosed issues of fact which must be determined from evidence, a jury was empaneled and sworn to determine such questions.
At the conclusion of opening statements by the defendants, also by the intervener, plaintiff moved for judgment in its favor and against defendants as well as the intervener on the pleadings and opening statements of counsel. When these motions were overruled plaintiff adduced its evidence and rested. Defendants followed with their evidence. Thereupon plaintiff demurred to the defendants evidence on the ground such evidence was insufficient to constitute a defense to the plaintiff’s case. This demurrer was overruled and the intervener adduced its evidence, to which plain tiff also demurred. When this demurrer was overruled plaintiff adduced rebuttal evidence.
At the close of all the evidence plaintiff moved that the court instruct the jury to return a verdict in favor of plaintiff and against the defendants and the intervener for the possession of the personal property described in its petition and replevin affidavit.
Following the overruling of the motion for a directed verdict the trial court submitted and read to the jury lengthy instructions. Several of these instructions are highly important because of contentions advanced on appeal and should be quoted. They read:
“No. 6. You are instructed that the only issue for your determination in this case is whether or not the plaintiff, Bordman Investment Company, had the right to take possession of the 1956 Buick automobile described in the evidence from the defendants, Willis D. Field and Pauline V. Field, under the writ of replevin which was caused to issue by the plaintiff.
“No. 7. It is admitted in this case that the title to the 1956 Buick automobile in question was in the name of Watts Motor Company at the time of the attempted sale to the defendants, Willis D. Field and Pauline V. Field. Ic is further admitted that James Watts, d/b/a Watts Motor Company and Kansas United Auto Sales, Inc., were not registered new car dealers, but were engaged in the business of selling both new and used cars to the general public. It is further admitted that the 1956 Buick automobile was a new unused automobile and no certificate of title had ever been issued thereon in any state.
“The Court has determined as a matter of law that Defendants’ Exhibit 2, the purported Bill of Sale from Kansas United Auto Sales, Inc., to Pauline V. Field failed to comply with the automobile registration laws of both Kansas and Missouri and that a certificate of title to the car in question could not be issued on the strength of said purported Bill of Sale alone to the defendant, Pauline V. Field.
“You are therefore instructed that as a matter of law the plaintiff has proven its right to possession of the 1956 Buick automobile in question, and that your verdict must be for the plaintiff and against the defendants, Willis D. Field and Pauline V. Field, and the Intervenor, Commerce Trust Company, unless you find that the defendants, Willis D. Field and Pauline V. Field, and the Intervenor, Commerce Trust Company, have proven by a preponderance of the evidence either one or both of the defenses set forth in Instruction 8.
“No. 8. You are instructed in this case the defendants, Field and the Intervenor, Commerce Trust Company, have set up as defenses to plaintiff’s claim of right to possession of the automobile in question: (1) That plaintiff is estopped from claiming its right to possession to said automobile under and by virtue of its chattel mortgage as against the defendants, Field; and (2) That said note for which the chattel mortgage on the automobile in question was given as security, has been fully paid by James Watts, d/b/a Watts Motor Company to the plaintiff, Bordman Investment Company.
“These matters are issues of fact and are solely for your determination.
“No. 9. You are instructed that in order for the defendants, Field, and Intervenor, Commerce Trust Company, to defeat the plaintiff’s right to possession under the theory of estoppel, that they must prove all of the following facts by a preponderance of the evidence:
“1. That the plaintiff, Bordman Investment Company and its assignor, Community Investment Co., on or about December, 1955, had developed a practice of financing the Watts Motor Company as a dealer in new and used cars under an arrangement by which plaintiff permitted the Watts Motor Company to retain possession of automobiles and sell said automobiles covered by their chattel mortgages to the general public in the regular course of business and deliver possession of said vehicles to purchasers from the place of business of Watts Motor Company, and that said automobiles were sold to purchasers as being free and clear of any encumbrances.
“2. That the plaintiff, Bordman Investment Co., and its assignors, Community Investment Co. permitted automobiles to be sold under the arrangements set forth in paragraph one hereof, in the name of Kansas United Auto Sales, Inc., although said automobiles were actually titled in the name of Watts Motor Co. and said automobiles were delivered to purchasers at the place of business of Watts Motor Company.
“3. That the plaintiff, Bordman Investment Company and its assignor, Community Investment Company, knew that James Watts was President and principal stockholder of Kansas United Auto Sales, Inc., a Kansas corporation, and also that the same James Watts was doing business as Watts Motor Company in Kansas City, Missouri.
“4. That Plaintiff, Bordman Investment Co., and its assignor, Community Investment Company, permitted Watts Motor Company and Kansas United Auto Sales, Inc., to pay off plaintiff’s note and chattel mortgage from the proceeds of the sale of said automobiles after delivery of possession of automobiles to purchasers at which time title would be procured for the purchasers from Bordman Investment Co. who held all evidences of title to said automobiles.
“5. That on or about December 28, 1955, defendants, Willis D. Field and Pauline V. Field, purchased the 1956 Buiek automobile in question and received possession thereof, and a purported bill of sale from Kansas United Auto Sales, Inc., the transaction being made on the premises of Watts Motor Company.
“6. That defendants, Field, had no actual notice of plaintiff’s chattel mortgage on said automobile.
“If you find that all of the above facts have been proven by a preponderance of the evidence then the plaintiff is estopped from claiming the right to possession to said automobile, even though the motor vehicle registration laws of Missouri and Kansas were not complied with and the defendants, Field, were unable to procure a certificate of title to said automobile, and even though you may find and believe that James Watts was in default under his note and chattel mortgage on said automobile to plaintiff, Bordman Investment Company. In such case your verdict should be for the defendants, Willis D. Field and Pauline V. Field, and the Intervenor, Commerce Trust Company.
“On the other hand if you find that all of the above facts have not been proven by a preponderance of tire evidence, then you will give no consideration to the defense of estoppel.
“No. 10. As to the defense of payment you are instructed that if you find by a preponderance of the evidence that after the sale and delivery of the 1956 Buick automobile in question to the defendants, Fields, on December 28, 1955, by Kansas United Auto Sales, Inc., and payment of the purchase price therefor, that James Watts delivered to said Bordman Investment Company, sufficient funds to pay off any outstanding balance due plaintiff and directed that the same be applied on the note and mortgage held by plaintiff on the 1956 Buick automobile, then in that event plaintiff would have no right to possession of said motor vehicle and your verdict must be for defendants, Willis D. Field and Pauline V. Field, and the Intervenor, Commerce Trust Company, and that would be true even though said funds were credited to other indebtedness of James Watts, d/b/a Watts Motor Company.
“On the other hand if you do not so find, then you will give no consideration to the defense of payment.”
After retiring to the jury room with the instructions and forms of verdict to which no objection is made, the jury, having announced it had reached a decision, returned with a verdict wherein it found for the defendants, Willis D. Field and Pauline V. Field, and the intervener, Commerce Trust Company.
Plaintiff then filed a motion for judgment notwithstanding the verdict and a motion for a new trial. In due course both motions were overruled. Following this action the trial court announced it accepted and approved the verdict. Thereupon it rendered judgment for the defendants and the intervener against the plaintiff for the possession of the automobile, described in the petition and affidavit in replevin, and further confirming title in such automobile to be in the defendants, subject only to the intervener’s mortgage.
Plaintiff then perfected the instant appeal and brings the case to this court under numerous specifications of error to be presently considered, discussed and determined.
At the outset the issues will be simplified by disposing of one contention out of the order in which it is presented. It is that the Commerce Trust Company should not have been permitted to intervene in the action as a party defendent. Our statute (G. S. 1949, 60-417) provides and our decisions (Ely v. Holloway, 95 Kan. 8, 147 Pac. 1128; Hoxie State Bank v. Vaughn, 137 Kan. 648, 651, 21 P. 2d 356) hold that when in an action for the recovery of real or personal property any person having an interest in the property applies to be made a party, the court may order it to be done.
Having established that the Trust Company is a proper party and since, after claiming a lien on the involved automobile, the effect of its answer is to merely reassert and rely on claims made by the defendants Field, we can now dispose collectively of claims of error with respect to rulings of the trial court on challenges made against the pleadings of all parties defendant. These are that the trial court erred in overruling (1) plaintiff’s demurrer to the second amended answer and cross-petition of defendants Field; (2) its motion for judgment against such defendants on the pleadings; and (3) its demurrer to the answer of the Trust Company. Without further recital of allegations of the pleadings thus challenged it may be stated that the essence of all contentions advanced with respect to such rulings is based on the premise the allegations of such pleadings were so limited that they failed to state a defense against the cause of action set forth in the petition. We note the answer of defendants Field, verified as the statute (G. S. 1949, 60-731) permits by one of such defendants only, contains a general denial and additional defensive allegations. The verified answer of the intervening defendant contains a similar denial and other allegations describing the nature of its interest in the involved property. Even so, and without regard to the additional allegations mentioned, it can and must be held that such answers were sufficient to constitute a defense to the petition. The long-established rule of this jurisdiction is that under a general denial in a replevin action the defendant may make any defense whatever that will defeat the plaintiff’s claim. See Nausley v. Nausley, 181 Kan. 543, 313 P. 2d 302, and authorities cited at page 545 of the opinion.
Early in this opinion we pointed out that after the overruling of the foregoing motions the cause came on for trial and that thereupon the court directed that only the portion of the case concerning the plaintiff’s right to possession be tried and that all issues respecting such rights would be submitted to a jury for its decision. Although it is not specified as error plaintiff, at least by inference, urges that this action on the part of the trial court was erroneous. All arguments on this point lack merit and cannot be upheld. Long ago in Upton v. Pendry, 109 Kan. 744, 202 Pac. 73, rehearing denied in 110 Kan. 191, 203 Pac. 300, we held that in an action in replevin where a defendant’s answer sets up an extended counterclaim the trial court in the exercise of its discretion and to expedite the administration of justice may postpone the hearing on all matters covered by tbe counterclaim until after tbe question of plaintiff’s right to possession of the goods at the commencement of the action in replevin is determined. Such action on the part of the trial court did not preclude the intervener, as plaintiff contends, from subsequently participating in the trial of the limited issues involved.
Error is assigned in the overruling of plaintiff’s motion for judgment against the defendants Field and the intervener on the pleadings and opening statements. So far as the pleadings are concerned this claim has been answered by what has been heretofore said and held respecting the propriety of rulings relating to the sufficiency of such pleadings. Our examination of the opening statements discloses nothing which necessarily and absolutely defeats the defenses, to which we shall presently refer, relied on by defendants as precluding plaintiff’s recovery. Under such circumstances this court is committed to the rule that no judgment can be rendered on the pleadings and opening statements. (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; Rodgers v. Crum, 168 Kan. 668, 673, 215 P. 2d 190; In re Estate of Modlin, 172 Kan. 428, 437, 241 P. 2d 692.)
Throughout the remainder of this opinion the plaintiff will be referred to as the appellant and the Fields and the Trust Company as the appellees.
Next it is contended the trial court erred in overruling appellant’s demurrers to the evidence offered by the respective appellees. We are not disposed to labor this evidence. It suffices to say it includes testimony by Watts which, if believed, is (1) sufficient to establish all facts recited by the trial court in subdivisions 1, 2, 3, 4 and 5 of Instruction No. 9 as necessary and required to defeat appellant’s right to possession under the theory of estoppel and is (2) also sufficient to establish the facts recited by such court in its Instruction No. 10 as necessary and required to establish the defense that appellant’s mortgage had been paid by Watts and, therefore, it had no legal rights entitling it to possession of the involved automobile on the date of its sale and delivery to appellees Field.
As we understand it, appellant’s position on the point now being considered is that under the undisputed evidence the purported bill of sale, obtained from Kansas United Auto Sales, Inc., through Watts, to Pauline V. Field failed to comply with the automobile registration laws of both Kansas and Missouri and that a certificate of title to the automobile in question could not be issued on the strength of her purported bill of sale; and that under the laws of both Kansas (G. S. 1955 Supp., 8-135 [c] [6]) and Missouri (301.210 [4] V. A. M. S. 1949) sale of such motor vehicle, without the assignment of a certificate of title, was fraudulent and void. Based on these two points appellant claims that, notwithstanding the testimony of Watts, appellees are precluded as a matter of law from relying upon payment and estoppel as defenses to its cause of action. We believe there are several reasons why this contention lacks merit and cannot be upheld.
In the first place, our decisions hold that a plaintiff in a replevin action must recover, if at all, on the strength of his own title or right of possession and not on the weakness of his adversary’s title or right of possession. (Rauh v. Dumler, 170 Kan. 698, 228 P. 2d 694.)
In the second, it has long been the rule of this jurisdiction that where a mortgagee knows the mortgagor is a dealer, buying to sell in regular course of business, and consents to a sale by the mortgagor, the purchaser takes free from the mortgagee’s lien (Emerson-Brantingham Implement Co. v. Faulkner, 119 Kan. 807, 241 Pac. 431). It is true the foregoing case did not involve possessory rights to an automobile under a mortgage. However, it is to be noted, the rule therein announced has been recognized, approved and applied in numerous decisions where like rights with respect to automobiles were involved. See, e. g., Universal Finance Corp. v. Schmid, 177 Kan 414, 418, 280 P. 2d 577; General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 222, 218 P. 2d 181; Sorensen v. Pagenkopf, 151 Kan 913, 916, 101 P. 2d 928; Trapani v. Universal Credit Co., 151 Kan 715, 100 P. 2d 735. The fact appellant is an assignee of the chattel mortgage executed by Watts gives it no greater right than its assignor. (Commercial Credit Corporation v. Kemp, 176 Kan. 350, 353, 270 P. 2d 909.) Moreover, in this case Watts testified to a state of facts which would bring appellant squarely within the rule in question, even if it had been the original mortgagee.
Finally it may be stated the rule, so elementary as to require no citation of the authorities supporting it, is that where the debt secured by a mortgage on personal property has been paid the mortgagee no longer has any lawful claim to the property. It follows payment of the obligation for which such a mortgage is given is a legal defense in an action to recover possession of the property covered by the terms of that instrument.
Next it is urged the court erred in overruling appellant’s motion for an instructed verdict. At that time there was evidence before the jury, although highly controverted, from which that body could properly find appellees had established the defenses of payment and estoppel to which we have heretofore given so much attention. Under such circumstances the trial court’s action in overruling the motion for an instructed verdict was proper.
Heretofore we have pointed out that after returning the verdict appellant moved for judgment non obstante veredicto. The grounds of this motion are that the pleadings and the instructions show that the appellant is entitled to judgment. We find nothing in the pleadings or instructions warranting the sustaining of this motion on the grounds stated and what has been heretofore said and held compels the conclusion that it was properly overruled.
We now turn to errors assigned with respect to the overruling of the motion for a new trial. First it is urged the trial court should not have admitted and improperly overruled appellant’s motion to strike from the record and withdraw from consideration of the jury a letter written by appellant to Watts sometime prior to the date of the transaction in question, wherein appellant acknowledged receipt of some $56,000.00 in full payment of floor plan notes, for the reason such letter did not tend to prove or disprove any issue in the case because the transaction on which appellant based its right to a lien occurred subsequent to the date of such letter. At the time of the admission of this letter Watts had testified to a course of dealing over the years in which appellant had permitted him to make sales, deliver cars and thereafter satisfy mortgages held by it. In addition he had testified in substance that appellant had consented to his sale of mortgaged automobiles and given him authority as the mortgagor to account later in large sums for the automobiles he had sold and on which it had existing liens. Under such circumstances we believe the letter was admissible as corroborating Watt’s testimony with respect to the situation existing at the time of the sale of the automobile in question.
Other contentions made by appellant respecting the admission of evidence have been examined and found to be without merit under the existing facts and circumstances.
Next it is urged the trial court erroneously refused to give the jury instructions requested by appellant. Nothing would be gained by laboring arguments advanced on this point. It suffices to say in a general way that such requested instructions were all predicated on premises, heretofore found to be fallacious, that regardless of the status of its own title or right of possession appellant was entitled to recover on the weakness of appellees’ title or right of possession; and that since appellees had failed to comply with the automobile registration laws of either Kansas or Missouri they could not avail themselves of the defenses of either payment or estoppel against appellant.
Finally it is argued the trial court erred in giving Instructions Nos. 8, 9 and 10, heretofore quoted. The most that can be said for appellant’s position with respect to these instructions is that they instruct on issues not raised by the pleadings and, hence, relate to matters which are not at issue in the case. Such questions were determined contrary to appellant’s position earlier in this opinion. Hence, they require no further discussion.
In reaching the foregoing conclusions we have not failed to give consideration of Motor v. Warren, 113 Kan. 44, 213 Pac. 810, on which appellant places much weight, holding that the purchase of an automobile in total disregard of a statute governing the sale and transfer of such property is void and affords the purchaser no defense in a replevin action instituted by a plaintiff having a lawful claim to the property. We have no quarrel with that decision. The trouble from appellant’s standpoint is that the rule therein announced applies only in cases where a plaintiff establishes a lawful claim to the property. Here, as has been pointed out, it has been determined that at the time of the commencement of the action appellant had no lawful claim to the automobile in question.
Neither have we overlooked other cases relied on by appellant, such as Sims v. Sugg, 165 Kan. 489, 196 P. 2d 191; Farmers & Merchants State Bank v. Hunter, 166 Kan. 52, 199 P. 2d 196; Bankers Investment Co. v. Meeker, 166 Kan. 209, 201 P. 2d 117, and cases there cited. Appellant properly refers to statements therein contained to the effect the section of our statute (G. S. 1955 Supp., 8-135 [c] [6]) means just what it says and that failure to comply with its provisions in the sale of a motor vehicle renders the sale fraudulent and void. Quite true. Even so, a careful analysis of all those decisions discloses such statements were made with respect to the rights of plaintiffs who had a lawful claim to the motor vehicles involved at the time of the commencement of their actions. We know of and are cited to no decisions of this jurisdic tion holding that where — as here — it appears the plaintiff had no such lawful right he could recover possession of an automobile from a defendant who had bought, paid for and received possession of such vehicle under the facts and circumstances disclosed by this record. Moreover, we are neither required nor disposed to hold our statute contemplates any such result.
Having heretofore considered all salient questions raised by appellant and finding nothing in them or in arguments advanced in their support which warrants the granting of a new trial or reversal of the decision of the lower court its judgment must be and is affirmed.
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|
The opinion of the court was delivered by
Parker, C. J.:
This appeal involves the interpretation of a will and a review of rulings made by the trial court with respect to the same subject on appeal from a proceeding instituted in the probate court.
Louise Blank, a long time resident of Altamont, Labette County, Kansas, died testate on April 24, 1954. Her last will and testament was duly admitted to probate in Labette County and ultimately Colene McCarty was appointed and qualified as administratrix de bonis non with will annexed of her estate.
On March 8, 1955, Merrill Blank, a devisee and legatee under the involved will, filed an application in the probate court, praying for an interpretation of such will, particularly paragraph IV thereof, and an order directing that certain funds in a bank account be transferred to him under its terms and provisions. Anna McClanahan and Edward Kruschke, also legatees under such will, filed a written defense to this application and, after a hearing, the probate court construed the will and found such application should be sustained and the bank account transferred as requested. McClanahan and Kruschke then appealed to the district court of Labette County.
When the case reached district court Merrill Blank, pursuant to orders made by such court in connection with a motion to strike and to make more definite and certain, filed an amended application which reads:
“(1) That the decedent, Louise Blank, died testate on April 24, 1954, and her last will has been admitted to probate on June 1, 1954, in the Probate Court of Labette County, Kansas, and the Fourth clause of said will reads as follows:
“ ‘I give, bequeath and devise to Merrill Blank of Altamont, Kansas, all my right, title and interest in and to my drug store located in Altamont including fixtures, merchandise and stock and accounts receivable owed to said store subject to the said Merrill Blank paying all outstanding debts and accounts owed by the store as of the date of my death. It is my will and desire that said Executor immediately deliver possession of said drug store to Merrill Blank and that said store and the income therefrom shall not be administered in my estate but the same shall belong exclusively to Merrill Blank.’
“That a true and correct copy of said last will and testament so admitted to probate in said court is attached hereto marked Exhibit A and made a part hereof as though fully rewritten herein.
“Petitioner alleges that said deceased, Louise Blank was the owner of and operator of a drug store at Altamont, Kansas, known as ‘Blank Drug Store’ and Merrell Blank, her stepson, operated and managed said store; that the assets of said drug store consisted of fixtures, merchandise, stock in trade, account receivable, which petitioner alleges included a bank account in the Labette County State Bank, Altamont, Kansas, carried ‘Blank Drug Store’, and was a checking account used for the purpose of the operation of said store and was a part of the right title and interest of said deceased in said drug store and was an account receivable of said drug store at the time of her death; that Louise Blank carried another account in the Labette County State Bank known as ‘Louise Blank Personal’, That at tire time of the death of Louise Blank there was on deposit in the Labette County State Bank in two accounts, as follows:
“ ‘Louise Blank Personal,................................$5,052.40’
“ ‘Blank Drug Store....................................$9,075.85’.
“That when the inventory of said estate was made as shown by the inventory returned by the appraisers, said accounts were listed and valued separately as follows:
“ ‘Statement of Debts and Accounts Belonging to Said Estate.
“ ‘Labette County State Bank Account Checking Acc’t Personal............................$5,052.40
‘Labette County State Bank Drug Store Bank Acc’t.............................$9,075.85’
“Your petitioner alleges that as shown by said will it was the intention of Louise Blank, deceased, that all of her right, title and interest in and to said drug store, including fixtures, merchandise, and stock and accounts receivable, go to Merrell Blank, subject to Merrell Blank paying the outstanding debts and accounts owed by the store as of the date of her death. Petitioner alleges that said account was carried as a separate account in said bank and at all times considered by said deceased as part of her interest in the ‘Blank Drug Store.’
“(2) Your petitioner further alleges that under the terms of said will, he having beeh given, bequeathed and devised the ‘Blank Drug Store’, is entitled to have the Court interpret said will to mean that it was the intention of Louise Blank that Merrell Blank take said drug store, including ‘Blank Drug Store’ account in the Labette County State Bank of Altamont, Kansas, and your petitioner alleges that the Court should direct the Executor to turn said account over to him as a part of the right, title and interest of said deceased in said drug store and as an account receivable due to said store, as the manner in which said drug store, was operated petitioner knows that said checking account was a part of said drug store.
“Wherefore, your petitioner respectfully prays that the above court authorize, order and direct the Executor to transfer the funds in said ‘Blank Drug Store’ checking account in the Labette County State Bank, Altamont, Kansas, to him and to interpret the will that such was the intention of Louise Blank, deceased.”
McClanahan and Kruschke demurred to the foregoing pleading on the ground it failed to state facts sufficient to constitute a cause of action. After a hearing this demurrer was overruled. They then filed an answer setting forth their defenses to such application. In this pleading they admitted the death of the testatrix, the admission of her will to probate, the provisions of the fourth clause of such will, and that on the date of her death testatrix was the owner and operator of the drug store at Altamont known as “Blank Drug Store”; denied generally all other allegations of such application; and specifically denied that the bank account in the Labette County State Bank in the name of “Blank Drug Store” was part of the right, title and interest of the decedent in and to said drug store, also that such bank account was an account receivable of the said drug store.
The cause came on for trial by the court with issues joined as related. Following an opening statement by counsel for the petitioner McClanahan and Kruschke moved for judgment on the pleadings and such opening statement. Upon interrogation by the court as to whether he desired to argue this motion at length counsel making the motion made the following statement:
“I don’t think that it will be necessary to argue it at length, since the demurrer has been filed, but it is the defendant’s contention that the terms of the will are clear and need not be constructed, but should be interpreted within its own four corners, and that no extrinsic evidence concerning the intent of the testatrix, or the circumstances are necessary nor should be admitted in this case.”
Upon the overruling of the foregoing motion counsel announced McClanahan and Kruschke objected to the introduction of any testimony or evidence in the case, stating in substance that such objection was based on the same grounds as those relied on in support of its motion for judgment on the pleadings in the opening statement. In due course this motion was overruled. Petitioner then adduced his evidence to which counsel for respondents demurred. Upon the overruling of this demurrer counsel announced respondents would stand on their demurrer and introduce no evidence but requested that the court make findings of fact and conclusions of law in connection with the overruling of the demurrer and the judgment to be rendered.
Thereafter the trial court made findings of fact and conclusions of law. It then rendered judgment in favor of petitioner and against respondents wherein it held, in substance, that under the terms and provisions of Louise Blank’s will, particularly paragraph IV thereof, such testatrix intended and did give to Merrill Blank the Blank Drug Store as a going concern and that such bequest and devise included the amount of the deposit in the Blank Drug Store account in the Labette County State Bank of Altamont on the date of the death of such decedent, which account was to be delivered to petitioner by the administratrix de bonis non of the Louise Blank estate.
Following rendition of the judgment, heretofore described, Mc-Clanahan and Kruschke filed a motion for a new trial, also motions to set aside and to modify the findings of fact and conclusions of law, all of which were overruled. Thereupon they perfected the instant appeal.
In a preliminary way it should be stated our review of the record discloses that under the existing facts and circumstances the appellee’s motion to dismiss the appeal cannot be upheld. For that reason we proceed with the merits of the cause without laboring contentions advanced in support of such motion.
Appellants make three contentions which must be disposed of before other questions involved in the case are considered. They are that the trial court erred (1) in overruling their demurrer to the heretofore quoted amended application; (2) in overruling their motion for judgment on appellees’ pleadings and opening statement; and (3) in holding that extrinsic evidence was admissible to establish the testatrix’ intention under the provisions of her will, particularly paragraph IV thereof.
Each of the foregoing contentions is based on appellants’ construction of the will to the effect its language is so clear and unambiguous as to compel a conclusion that they, as residuary legatees, are entitled to receive all money on deposit in the “Blank Drug Store” account in the Labette County State Bank on the date of the death of the testatrix, irrespective and notwithstanding the devise to Merrill Blank under paragraph IV of the will.
The rule of this jurisdiction, as appellants contend, is that when the language used in the making of a will is clear and unambiguous a construction of that instrument is unnecessary and it must be enforced in accord with its terms and provisions. See, e. g., In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234; In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707. In a summary way it may be said that, under this rule, where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will its first duty is to survey the instrument in its entirety and ascertain if there is occasion for employing rules of judicial construction in determining its force and effect.
Touching appellants’ position on the point now under consideration it is to be noted they cite no cases, either from this jurisdiction or elsewhere, to sustain it. It has been said that under such circumstances this court may well assume their counsel, after diligent search, have been unable to find any. (McCoy v. Fleming, 153 Kan. 780, 783, 113 P. 2d 1074; Simeon v. Schroeder, 170 Kan. 471, 475, 227 P. 2d 153; Ehrhart v. Spencer, 175 Kan. 227, 233, 263 P. 2d 246; Shobe v. Tobin Construction Co., 179 Kan. 43, 48, 292 P. 2d 729.) Even so, we have examined the will and, it may be stated, that after a careful analysis of its terms and provisions we are unwilling to say, that where — as here — a testatrix gives, bequeaths and devises all her right, title and interest in and to a drug store, including fixtures, merchandise and stock and accounts receivable owed to said store subject to the said devisee paying all outstanding debts and accounts owed by the store as of the date of her death, to her stepson (Merrill Blank); thereafter makes specific bequests of money to her sister (Anna McClanahan) and her brother (Edward Kruschke); and finally names the sister and brother as residuary legatees, it can be successfully urged, that standing alone, the terms and provisions of her will are so definite and certain as to compel a conclusion she intended a bank account carried by her in the name of the drug store to pass under the residuary clause of her will. Likewise, it may be added, our somewhat extended examination of the authorities fails to disclose any case where similar terms and provisions of a will have been held to be entitled to the force and effect appellants seek to place upon them.
Having determined there is ambiguity in its terms it necessarily follows the will is subject to construction under rules which are well-established in this jurisdiction. See In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591, which it held:
“The fundamental rule for construing a will is that the intention of the testator is to be gathered from the instrument as a whole, and that intention must prevail if it is consistent with the rules of law. If possible, the will should be construed to avoid intestacy.
“In determining the testator’s intention, the will is to be read in the light of the circumstances under which it was written, which circumstances include the nature and amount of his estate and his relation to his family and named beneficiaries.
“Evidence tending to show the situation at the time the will was executed, the nature of his business, the extent of his property, his relations with his family or named beneficiaries, may be received if helpful in identifying property or beneficiaries, or to clarify language used in the will, but not to change the will.” (Syl. ¶¶ 2, 3 & 4.)
See, also, Wood River Oil & Refining Co. v. Madden, 169 Kan. 633, 220 P. 2d 154, where, after stating it is elementary the cardinal consideration in construing a will is the intention of the testator, we said:
“. . . The test of that intention is the language contained in the four corners of the instrument, and circumstances surrounding its execution if they are needed to clarify the testators true intent and purpose. . . .” (p. 636.)
For other decisions, where the rules last above stated are considered, discussed and applied, see In re Estate of Hauck, 120, supra; Beall v. Hardie, 177 Kan. 353, 356, 279 P. 2d 276; Walker v. Koepcke, 177 Kan. 617, 622, 282 P. 2d 382, and cases therein cited.
What has been heretofore stated and held compels the conclusion appellants’ first three contentions respecting error lack merit and cannot be upheld.
We therefore turn to a fourth question which, in reality, presents the crux of this lawsuit. In essence this question is: Does the Blank Drug Store bank account go to Merrill Blank under the provisions of paragraph IV of the will or does it go to the appellants under the residuary clause of that instrument? In the light of what has been heretofore related the question thus posed must, of course, be determined on the basis of the intention of the testatrix as gathered from the will as a whole and other competent evidence, if helpful to a clarification of its language, adduced during the trial of the cause.
Early in this opinion we noted the trial court made findings of fact and conclusions of law. All twenty-one of such findings are important and, we may add, from our examination of the record appear to be supported by evidence. In the interest of time and space we shall quote only those findings and conclusions having particular significance from the standpoint of the testatrix’ intention. They read:
“Findings of Fact
“5. That testatrix left her personal bank account, in the amount of $5052.40 in the Labette County State Bank, Altamont, Kansas, at the time of her death, including sufficient funds to pay the specific devises, bequests and legacies of her last will and testament.
“7. That the testatrix’s closest relationship with a living person during a portion of her lifetime, was her relationship with her stepson, Merrill Blank, and although Merrill Blank was not her natural son, he stood in the relationship of natural son to the testatrix for over twenty years.
“8. That the testatrix did not devote her time exclusively to the Blank Drug Store; that the testatrix was never a registered pharmacist; that Merrill Blank was the registered pharmacist, working in said Blank Drug Store.
“10. That the person in closest relationship to testatrix during her life, as a widow, and the only person occupying a confidential relationship with her during that period of her life, was her stepson, Merrill Blank.
“11. That testatrix, by the provisions of the will, gave to said Merrill Blank, all her right, title and interest in and to said Blank Drugstore, including the fixtures, stock and merchandise, accounts receivable and the income therefrom, as shown by the cash on hand in the store, and the Blank Drug Store bank account, requiring said Merrill Blank to pay all outstanding debts and accounts owed by said store at the time of the death of the testatrix, ordered immediate delivery of the possession of said drug store to said Merrill Blank, and provided that the same was to belong to said Merrill Blank exclusively, and that these properties were not to be administered in the estate; that testatrix intended to and did give to said Merrill Blank a solvent, ‘going concern.’
“13. That the testatrix, Louise Blank, died the sole owner of said retail drug store located in Altamont, Labette County, Kansas, that the assets of the Blank Drug Store, at the date of the death of testatrix, consisted of furniture, fixtures, merchandise, stock, accounts receivable, money or cash on hand, in the amount of $35.21, and a bank account in the Labette County State Bank, Altamont, Kansas, in the amount of $9442.69, as of the date of the death of testatrix, and carried in the name of the ‘Blank Drug Store’; that the Blank Drug Store bank account was established and carried under the name ‘Blank Drug Store’ for some twenty years prior to the death of testatrix, and that during this period of time the petitioner, Merrill Blank, and the testator, Louise Blank, were the only persons authorized to write checks upon or draw amounts from said Blank Drug Store bank account.
“14. That at the time of her death, Louise Blank had a separate and personal bank account in the Labette County State Bank of Altamont, Kansas, in the amount of $5052.40, as of the date of her death, which said bank account was established and carried under the name of Louise Blank for some twenty years prior to the death of testatrix, and that the only person who had authority to write checks upon or draw amounts from said bank account was Louise Blank.
“15. That on the date of the death of testatrix, Louise Blank, the Blank Drug Store owed outstanding debts and accounts incurred by the store during the lifetime of testatrix and which remained unpaid at her death, and that the petitioner, Merrill Blank, as required by the terms of the will, and subsequent to the death of testatrix, paid all of said outstanding debts and accounts owed by the store as of the date of the death of testatrix, he paid these debts out of his personal funds.
“18. That petitioner is 59 years of age, and lost his natural mother by death when he was about three years of age, and never knew nor has any memory of his natural mother; that when he was about three years of age, his father married the testatrix, Louise Blank, and that said testatrix is and was the only mother that petitioner ever knew; that petitioner lived with said testatrix all of his life and up until the death of testatrix, and even after petitioner had married; that petitioner and testatrix had been business partners in a drug store and other ventures prior to the testatrix purchasing the Blank Drug Store; that testatrix acquired the Blank Drug Store about twenty years ago, and that from the time thereof, until her death, petitioner devoted his entire time to the management, care, promotion and development of said Blank Drug Store; that petitioner was the only registered pharmacist in the town of Altamont, Kansas, and over the twenty year period devoted an average of 105 hours a week in the management of, and in promoting the best interest of the Blank Drug Store, owned by his stepmother, Louise Blank; that over the entire period of time petitioner was paid a minimum of $22.50 a week to a maximum of $45.00 a week; that the development, profits and success of said Blank Drug Store, as they existed on the date of the death of testatrix, were due in a large part to the efforts, work, time and labor devoted by petitioner thereto.
“19. That the checks used to draw funds from the Blank Drug Store bank account were on a printed-form check, and were honored upon the signature ‘Blank Drug Store’, and that checks on this account were written by both the testatrix and petitioner, and the signature element usually did not carry any name or initials other than the words ‘Blank Drug Store’; . . .
“20. That the testatrix, Louise Blank, meant and intended to, and did use the word ‘including’, as it appears in paragraph 4 of her last will and testament, as a term of enlargement and not of limitation, and did not intend to use such word as a term of restriction or enumeration.”
“Conclusions of Law
“1. That from the words of the Last Will and Testament, its language, provisions, and all parts thereof, and from the condition, nature and extent of the testatrix’s property, and her relations to her family and to the various beneficiaries named in the will, and from the situation of the testatrix at the time the will was executed, the nature of her business, the extent of her property and the various bequests and dispositions made of her property by said last will and testament, the Court concludes that it was the intention of the testatrix, by her last will and testament, that the bank account carried in the name of the ‘Blank Drug Store’ should remain a part of the Blank Drug Store and belong to Merrill Blank, petitioner, as income therefrom and an asset of said store, and included as a part of the testatrix’s right, title and interest in and to her drug store, and that petitioner, Merrill Blank, is entitled to all of said bank account in the amount of $9,442.69.”
In giving consideration to what we have heretofore indicated is the crucial question here involved we find, and the parties cite, no cases from this jurisdiction which can be regarded as controlling precedents under the existing facts and circumstances. Nor do the parties cite or rely upon decisions of that character from foreign jurisdictions. Notwithstanding, we have made an independent and extended examination of such authorities and have found a few decisions which, since they deal with similar wills and legal questions, we believe can be regarded as sound and controlling precedents.
See Murphy v. Murphy, 118 N. J. Eq. 108, 177 A. 682, affirmed in 119 N. J. Eq. 83, 180 A. 829, where it is held:
“In construing a will, it is the prime duty of the court to arrive at the intention of the testator which must be determined not by fixing the attention on single words in the will but by considering the entire will and the surroundings of the testator when he executed the same, and by ascribing to him, so far as his language permits, the common impulses of our nature.
“The words in the will of John Henry Murphy, 1 hereby give and bequeath my printing business and the machinery and plant and stock in trade, good will and fixtures’ pass and include the money on deposit in the bank account used in connection with said business, and also the accounts receivable, less the accounts payable.” (Syl. ¶¶ 1 & 2.)
And in the opinion said:
“Considering the language of the provision in the will, the testator first bequeaths my printing business’ in what is a broad bequest, to which he adds ‘and the machinery and plant and stock in trade, good will and fixtures.’ These are not words of restriction, but specify some of the chief tangible property in the plant. He bequeaths his printing business, together with the good will. He intended not to cut down the bequest but to make clear that in addition to the business in its entirely, these principal items, physically in the plant, should unmistakably pass with the business. The intention of the testator in this, as in every other case of like nature, must be drawn from the language used in the will, viewed in the light which the situation and surroundings connected with the property may shed upon it.” (pp. 113, 114.)
See, also, In re Lowe, 134 N. Y. S. 537, affirmed in 206 N. Y. 671, 99 N. E. 722, which holds:
“Where a testatrix devised and bequeathed to her daughter her ‘printing office and bindery, together with all the presses, bindery machinery, type, paper on hand, office furniture and equipment of every nature connected with said business,’ the naming of the particular physical items of the plant was not a restriction, but the words are merely of specification, and would not qualify the clearly expressed intention of the testatrix to pass the entire business, just as she had regarded it and treated it in her lifetime, so that the moneys on hand and accounts receivable passed to her daughter, rather than to the residuary legatees under the will.” (Syl. ¶ 3.)
And see Chavis v. Myrick, 190 Va. 875, 58 S. E. 2d. 881, where it is held:
“By will of plaintiff’s testator, defendant was given a one-half interest ‘in our business, and real and personal property, “Morning Glory Funeral Home,” . . . in fee simple’. Plaintiff contended that under this clause defendant did not take certain money in bank to the credit of the funeral home, but the words of the clause plainly embraced testator’s interest in all that belonged or pertained to the home as a going business. Testator’s interest in tire money came from his interest in the business of which it was a part, and the gift of his whole interest necessarily included the money.” (Syl. ¶ 2.)
For other decisions of like import see Coyle v. Donaldson, 91 N. J. Eq. 138, 108 A. 308; In re Whitford’s Estate, 262 N.Y.S. 452; Van Buren v. Plainfield Trust Co., 130 N. J. Eq. 244, 22 A. 2d 189.
Based upon the foregoing decisions we have little difficulty in concluding the trial court’s construction of the will of Louise Blank, as set forth in its heretofore quoted conclusion of law, was proper and that its subsequent judgment rendered in accord with such conclusion must be upheld.
Finally it should be stated that, under the rule announced in In re Estate of Schnack, Syl. ¶¶ 3 and 4, supra, and the facts and circumstances of the case at bar, we have rejected, not overlooked, claims of error made by appellants to the effect (1) the evidence presented by Merrill Blank was insufficient to prove any issue in the case; (2) the trial court erred in admitting evidence of Blank’s relationship with decedent, his salary and hours of work; and (3) such court erred in admitting evidence as to the use of the Blank Drug Store bank account. Moreover, if any evidence of the character complained of was improperly admitted, appellants have failed to make it affirmatively appear its admission prejudicially affected their substantial rights and we believe it appears upon the whole record that substantial justice has been done by the judgment of the trial court. Under such circumstances error, if any, in the admission of the evidence complained of is to be considered as technical in nature and must be disregarded (G. S. 1949, 60-3317).
The judgment is affirmed.
Price, J., dissenting: Due to the fact I think the ultimate disposition of this case results in substantial justice, I regret my inability to concur in the decision of the court. The rule is well stated in In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234, in which it was held that when the language used in the making of a will is clear and unambiguous a construction of the will is unnecessary and it must be enforced in accord with its terms and provisions. Paragraph V of the will before us reads:
“I give, bequeath and devise to Merrill Blank of Altamont, Kansas, all my right, title and interest in and to my drug store located in Altamont including Fixtures, merchandise and stock and accounts receivable owed to said store subject to the said Merrill Blank paying all outstanding debts and accounts owed by the store as of the date of my death. It is my will and desire that said Executor immediately deliver possession of said drug store to Merrill Blank and that said store and the income therefrom shall not be administered in my estate but the same shall belong exclusively to Merrill Blank.”
I see no ambiguity or uncertainty in those provisions. Testatrix, in plain and understandable words, simply bequeathed and devised to Merrill all of her right, title and interest in and to the drug store, including fixtures, merchandise, stock and accounts receivable owed to the store, subject to Merrill paying the outstanding debts and accounts owed by the store as of the date of her death. As applied to a business such as this the words “accounts receivable” have a well-defined and commonly-understood meaning— money owed to the store by customers for merchandise purchased on credit.
The will, and particularly paragraph IV thereof, being clear and unambiguous, should be enforced in accord with its terms and provisions, and there was no occasion for resort to extrinsic evidence to ascertain the intention of testatrix.
I therefore respectfully dissent. | [
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|
The opinion of the court was delivered by
Price, J.:
This case presents a very interesting question in view of our statute, G. S. 1949, 59-513, which provides:
“No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will or otherwise from such other person any portion of his estate.”
A husband and wife own real estate as joint tenants with right of survivorship and not as tenants in common. The husband is convicted of the second degree murder of his wife. In such a situation does the husband, as surviving joint tenant, succeed to the entire interest in the property so owned, or is his right barred by the provisions of the statute with the result that the property, or an interest therein, is an asset of the deceased wife’s estate?
The facts are not in dispute.
Queenye I. Foster and Eugene M. Foster were husband and wife. They owned two lots on College Avenue in the city of Topeka as joint tenants with the right of survivorship and not as tenants in common. On April 23, 1955, while legally married, and while still the owners of the property as aforesaid, Eugene shot and killed Queenye. She died intestate and her administrator claimed the property as an asset of her estate. This was objected to by Eugene, who in the meantime, on May 4, 1955, had deeded the property to Daisie F. McDonald and Abbie Foster. On November 15, 1955, Eugene was convicted of second degree murder in the district court of Shawnee County and was sentenced to confinement in the state penitentiary. His grantees are now in possession of the property.
Both the probate and district court held the mentioned statute to be inapplicable, and that the entire title to the property vested in the husband as surviving joint tenant. The administrator of the wife’s estate has appealed.
Although this court has had occasion to deal with the general subject matter, it has never been called upon to answer the precise question here presented.
In McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 115 Am. St. Rep. 233, 3 L. R. A. (NS) 726, a husband killed his wife for the purpose of obtaining her property which consisted of a personal estate of about $1,000. He was convicted of first degree murder. She had no children and died intestate. Under the inheritance statute her husband would have inherited her property as her sole heir-at-law. Her brothers and sisters, the nearest blood relatives living, claimed the property on the theory that the husband’s crime disabled him from taking any interest in it, and that to hold otherwise would, in effect, be giving property as a reward for crime. At that time we had no statute covering the subject of G. S. 1949, 59-513, supra.
While recognizing fully the justness and morality of the principle that no one should be permitted to profit or to gain property as the result of his own crime, this court nevertheless held:
“The power to declare the rule for the descent of property is vested in the legislature; and where it has provided in plain and peremptory language that a husband shall inherit from his deceased wife, and no exception is made on account of criminal conduct, the court is not justified in reading into the statute a clause disinheriting a husband because he feloniously killed his intestate wife for the purpose of acquiring her property.” (Syl.)
As a result of that decision, which was rendered in January, 1906, the 1907 legislature enacted the following statute, later appearing as G. S. 1935, 22-133:
“Any person who shall hereafter be convicted of killing or of conspiring with another to kill or of procuring to be killed, any other person from whom such person so killing or conspiring to kill or procuring said killing would inherit the property, real, personal, or mixed, or any part thereof, belonging to such deceased person at the time of death, or who would take said property by deed, will or otherwise, at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead.”
In Hamblin v. Marchant (1918), 103 Kan. 508, 175 Pac. 678, 6 A. L. R. 1403 (see also opinion on rehearing, Hamblin v. Marchant, 104 Kan. 689, 180 Pac. 811), the husband owned an undivided one-half interest in certain real property. He was shot and killed by his wife. They had no children. He died intestate. She was convicted of manslaughter in the third degree. She claimed ownership of his interest in the property in question by virtue of being his sole surviving heir-at-law. This court held that a conviction of manslaughter in the third degree was a “conviction for killing” within the meaning of the statute and barred her from inheriting, and in the course of the opinion said that when the fact of killing is ascertained in a criminal prosecution, resulting in conviction, the property is not then taken from the person who would inherit, but rather, it is then determined that the person never did inherit and never did acquire any interest in the property.
In Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021, the husband killed his wife and committed suicide two days later. About three weeks later he was “convicted” by a coroner’s jury of the murder of his wife. She died intestate, and a dispute arose over rights of inheritance in her property. It was held that the finding by the coroner’s jury was not a “conviction” within the meaning of the 1907 enactment, supra, and that the husband was not disqualified to take the property as his wife’s heir-at-law. In the course of the opinion it was said that the power to declare the rule for descent of property is vested in the legislature, and that when the legislature has provided in plain language the conditions of disherison from an intestate feloniously killed the court is not justified in minimizing those conditions or in reading different conditions into the statute.
In Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P. 2d 22, the dispute was over the proceeds of a life insurance policy. The circumstances were that a husband and wife were found dead under such conditions as to make it doubtful which one survived. In the course of the opinion reference was made to the provisions of the 1907 enactment, supra, and it was stated that the public policy of this state, as announced by the legislature, is that one killing another shall not take property from the murdered person in any manner whatsoever, but that he must be convicted of the crime before he is barred.
In passing, it should be noted that none of the foregoing cases dealt with real estate owned by the victim and felon as “joint tenants with right of survivorship and not as tenants in common.”
In 1939 the 1907 (G. S. 1935, 22-133) statute was repealed, and G. S. 1949, 59-513, supra, was enacted as a part of the new probate code. We find no decision of this court dealing with the later statute.
The gist of appellant’s (administrator’s) argument is that by the enactment of the statute the legislature has declared the public policy of this state to be that no one shall be entitled to profit as the result of his own wrong; that ownership of real property in joint tenancy with right of survivorship is not above the law and outside the statute; that the literal meaning of the statute is that no person in the situation of this husband shall inherit or take by will, or in any manner whatsoever, any property belonging to his victim; that in the case before us nothing is lacking insofar as the statute is concerned, and that the wife’s estate is entitled to the property to the exclusion of the husband, who, through his felonious act, brought about her death.
Appellees (the husband and his grantees), on the other hand, contend the statute in question is inapplicable for the simple reason that the husband did not inherit, take by will, or otherwise, from his deceased wife any portion of her estate, and that upon her death he, as surviving joint tenant, took no new title or right in the property in question other than that which he had possessed ever since the execution of the joint-tenancy deed to him and his wife on October 16, 1950. In other words, it is contended that a surviving joint tenant holds under the conveyance by which the joint tenancy is created, and that the right of survivorship does not pass anything from the deceased joint tenant to the survivor — that is, the rights of joint tenants become vested under the deed of conveyance, and not under the laws of descent and distribution.
In Holmes, et al. v. Holmes, et al., 70 Kan. 892, 79 Pac. 163, the court, with reference to survivorship conveyances, stated that each of such grantees is seized with an indivisible entirety; that each takes a present vested estate, and as each owns the whole, upon the death of one the survivor necessarily retains the exclusive title to the land; that nothing descends to the survivor, nor does he acquire any new title or estate by virtue of the death of the other grantee, and that such survivor takes the whole estate by the original conveyance.
In Simons v. McLain, 51 Kan. 153, 32 Pac. 919, it was said that an estate in joint tenancy is an estate arising by purchase or grant to two or more persons, and that the grand incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenant remains to the survivors and at length to the last survivor.
In Best v. Tatum, 78 Kan. 215, 96 Pac. 140, 130 Am. St. Rep. 365, in discussing the rights of heirs of a deceased joint tenant, it was said that under such a conveyance each joint tenant holds one and the same interest; that the rights of joint tenants become vested under the deed of conveyance, and that upon the death of one joint tenant the entire estate vests in the surviving joint tenant.
In Bartlett’s Kansas Probate Law and Practice, Rev. Ed., § 1482, p. 302, it is said that survivorship is the distinctive characteristic of joint tenancy; that upon the death of a joint tenant the property passes to the survivor; that upon the death of a joint tenant the survivor or survivors take the whole estate freed from the claims of the heirs, devisees and creditors of the deceased joint tenant; that the fact of death is the controlling element, and that the survivor does not “take” from the deceased joint tenant, but by right under the conveyance or other instrument by which the joint tenancy was created. In support thereof Bouska v. Bouska, 159 Kan. 276, 153 P. 2d 923; Householter v. Householter, 160 Kan. 614, 164 P. 2d 101; In re Estate of Fast, 169 Kan. 238, 218 P. 2d 184, and the Holmes case, supra, are cited.
In 48 C. J. S., Joint Tenancy, § 1, p. 911, it is said that a surviving joint tenant does not take the moiety of the other tenant from him or as his successor, but takes it by right under the conveyance or instrument by which the joint tenancy was created; that death gives the survivor no new title or right, but merely relieves him from further interference by his cotenant.
In 14 Am. Jur., Cotenancy, § 6, pp. 79 and 80, it is said that an estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship by virtue of which the entire estate, upon the death of a joint tenant, goes to the survivor, and that a surviving joint tenant holds under the conveyance or instrument by which the tenancy was created, and not under laws regulating intestate succession.
From the foregoing it is clear that a surviving joint tenant of real property does not take as a new acquisition under laws of intestate succession, but under the original conveyance, his estate merely being freed from participation of the other.
As applied to the facts before us, then, the result would be this:
Queenye and Eugene acquired the property as joint tenants with right of survivorship and not as tenants in common in October, 1950. The rights of each vested under the deed of conveyance. Upon her death, he, as surviving joint tenant, succeeded to the entire interest in the property unless barred by the statute in question.
The same legislature which passed the statute here involved also enacted what is known as the property act of 1939, the first section of which is G. S. 1949, 58-501, relating to the creation of tenancies in common and joint tenancies. (This section was later amended— see G. S. 1955 Supp. 58-501.) G. S. 1949, 58-703, being a section of the uniform simultaneous death law, enacted in 1947, relates in part to the disposition of property owned by two joint tenants whose deaths are simultaneous. Then, in 1951, the legislature enacted what now appears as G. S. 1955 Supp. 59-2286, relating to the termination of life estates and estates in joint tenancy by death.
It is significant to note that in none of the mentioned statutes relating to the creation of joint tenancies, or the termination thereof by death, has the legislature seen fit to limit or restrict the right of a surviving joint tenant because of criminal conduct on his part.
As indicated in the annotation at 32 A. L. R. 2d 1099, courts have differed on the question here presented (1107), and on similar questions involving joint bank accounts, life insurance policies, and the like. Those which hold that the felon is entitled to the entire interest as surviving joint tenant base their decisions on the principle inherent in the legal concept of joint tenancy whereby each joint tenant is deemed to hold the entire estate from the time of the original conveyance, and reason that the killer acquired no additional interest by virtue of the felonious destruction of his joint tenant of which he can be deprived. Other courts, following equitable principles prohibiting a person from profiting from his own wrong, have either divested him of the entire estate, or have deprived him of one-half of the property, or have imposed a constructive trust on the entire estate held by the killer for the benefit of the heirs of the victim by adoption of the “formula through which the conscience of equity finds expression.” Still others have followed the constructive trust theory, modified by a life interest in one-half of the property. (In passing, it should be noted that the case of Welsh v. James, 408 Ill. 18, 95 N. E. 2d 872, listed on page 1107 of the above annotation as being one of those cases upholding the right of the killer to the entire interest, has been overruled by Bradley v. Fox, 7 Ill. 2d 106, 129 N. E. 2d 699.)
As was said in the McAllister case, supra, that anyone should acquire property as the result of his crime is abhorrent to the mind of every right-thinking person, and, notwithstanding that a joint tenant’s right to complete ownership unfettered by the interests of his cotenant is contingent upon him surviving, whereas, after, and because of, his felonious act removes that contingency thus making him the sole owner of the property, nevertheless we feel compelled to uphold the trial court’s ruling that the statute, G. S. 1949, 59-513, is inapplicable to the facts before us.
When Queenye and Eugene acquired the property in joint tenancy each took a present vested estate in the whole under the deed of conveyance. This was so under the law of real property. The statute in question, a part of the probate code, relates to inheritance and descent and distribution, and prohibits a convicted killer from inheriting as an heir-at-law, or from taking by will, or otherwise, any portion of the victim’s estate. Conceding the word “otherwise” means “in any manner whatsoever” — the fact remains the statute has reference only to the victim’s estate. Under the law of real property, Queenye’s interest became no part of her estate, as such, for purposes of intestate succession, upon her death.
By the enactment of 1907, heretofore referred to, and the 1939 statute now under consideration, the legislature has pre-empted the field and subject matter, and, as previously pointed out, in neither of those statutes, nor in those (supra) relating to the creation, or termination by death, of joint tenancies, has the legislature seen fit to limit or restrict the right of a surviving joint tenant in property so held, because of criminal conduct on his part.
Although a theory depriving a murderer of any benefits resulting from his crime appeals to our sense of justice and equity, we are not permitted to read something into the statute which is not there. The result is that upon the death of his wife the husband succeeded to the entire interest in the property in question.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a workmen’s compensation proceeding.
The case comes to this court on a notice of appeal reciting that claimant appeals from the order and judgment of the district court entered on June 13, 1957, against him and in favor of the respondents.
Following perfection of the appeal claimant filed a short abstract, consisting of three pages, with the clerk of this court. This was followed by his brief containing five printed pages. Thereafter, and several weeks before oral argument, respondents filed their brief consisting of a motion to dismiss the appeal, argument in support of that motion including authorities relied on, and a short brief touching several claims of error raised by claimant.
At the outset, in their brief and on oral argument, respondents challenge the right of claimant to be heard on the basis established decisions of this court require a dismissal of claimant’s appeal because of his failure to comply with particular requirements of its Rule No. 5 (see 177 Kan. xi; G. S. 1949, 60-3826, “Rules of the Supreme Court”) which, so far as here important, read:
“In appealed eases the appellant shall print an abstract of the record which shall reproduce such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review, so that no examination of the record itself need be made for that purpose . . . The appellant’s abstract shall include a specification of the errors complained of separately set forth and numbered ...”
In view of the challenge thus made by respondents it becomes obvious that if they are correct in their position with respect to claimant’s failure to comply with the foregoing rule, in the. particulars noted, and the force and effect of our decisions in the event of such a failure, this case can and should be disposed of without burdening our reports with a statement of the facts, events and circumstances leading up to the institution of the compensation proceeding or its disposition in the court below. We therefore turn directly to the question whether, under the existing facts and circumstances, the merits of the cause are subject to appellate review.
From a careful examination of the record it appears that claimant has neither printed an abstract of the record which reproduces such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review, so that no examination of the record itself need be made for that purpose, nor has he included in the abstract or his brief a specification of the errors complained of on which he relies as grounds for reversal of the judgment. Indeed the last mentioned violation of the rule is frankly conceded. Moreover, it is clear he made no attempt to conform with either of the requirements of such rule after his right to be heard on appeal was challenged on grounds of noncompliance with its terms and conditions.
Resort to applicable decisions of this court reveals there can no longer be any question respecting the disposition of an appeal in this jurisdiction when, under conditions and circumstances such as have been heretofore related, the right of a party seeking appellate review of a trial court’s judgment is challenged by a motion to dismiss the appeal on grounds here involved.
Our last pronouncement on the subject, under similar facts and circumstances, is to be found in North American Finance Corporation v. Circle-B, Inc., 180 Kan. 34, 299 P. 2d 576, where it is stated:
“Where a party’s right to be heard on appeal is challenged on the grounds of noncompliance with Rule No. 5 of the Supreme Court (174 Kan. XI; G. S. 1949, 60-3826), and it appears from the record he has made no attempt to comply with it, his appeal will be dismissed.” (Syl. ¶ 3.)
And in the opinion said:
“This court is firmly committed to the rule that when a party’s right to be heard on appeal is challenged on the grounds of noncompliance with Rule No. 5 of this court, and it appears from the record he has made no attempt to comply with it, his appeal will be dismissed (Biby v. City of Wichita, supra; Lambeth v. Bogart, supra; Hall v. Eells, supra; Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463; Topping v. Tuckel, supra; Dupont v. Lotus Oil Co., supra; Miller v. Rath, 173 Kan. 192, 244 P. 2d 1213; Gilley v. Gilley, 176 Kan. 61, 268 P. 2d 938; Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626).” (p. 37.)
We are neither inclined nor disposed to again labor the reasons responsible for the enunciation and application of the rule of the foregoing decision, or the cases therein cited, to which we adhere. It suffices to say they have been considered and discussed on many occasions in our decisions. See, e. g., North American Finance Corporation v. Circle-B, Inc., supra; Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; Miller v. Rath, 173 Kan. 192, 244 P. 2d 1213; Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975; Lam beth v. Bogart, 155 Kan. 413, 125 P. 2d 377; Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919.
In conclusion it should be stated we have not overlooked, but rejected, a suggestion made by claimant, which is not strenuously urged, to the effect Rule No. 5 of this court and the decisions construing its force and effect have no application to a workmen s compensation action. G. S. 1955 Supp. 44-556 (now G. S. 1957 Supp. 44-556) authorizing appeals to this court from a judgment of the district court in such a proceeding expressly provides that when such an appeal reaches this court it shall be prosecuted in like manner as other appeals in civil cases.
What has been heretofore stated and held requires that the instant appeal be dismissed.
It is so ordered.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for ejectment, quiet title, accounting and partition. Judgment was for the defendant Emmett Farrell; and plaintiffs, Joseph Hurley and Henry J. Ziemba, appeal. The case is here a second time. In the first appeal, the order of the trial court sustaining a demurrer to defendant Farrells evidence was reversed and the case was returned for a new trial. (Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184.) In order to avoid duplication, that opinion is made a part hereof.
Rriefiy stated, the facts are as follows: At the time of Ellen Farrell’s death on June 3,1952, record title to 240 acres of land and two city properties in Phillips county stood in her name. Her only heirs at law were plaintiff (appellant) Joseph Hurley, her grandson, and defendant (appellee) Emmett Farrell, her son. More than one year had expired since her death and no will had been admitted to probate. Plaintiff Hurley quitclaimed an undivided one-fourth interest in the described real estate to plaintiff (appellant) Henry J. Ziemba, after which Hurley and Ziemba brought this action against defendant Farrell and others, alleging that said defendant was in possession of the property and praying that he be ejected and the property partitioned according to the interests of the parties (one-fourth to each of the plaintiffs and one-half to the named defendant).
After issues were joined, the parties, at a pretrial conference, entered into a stipulation which bound them in the trial of the case. The substance of the stipulation was that at the time of her death Ellen Farrell was the record title holder of the real estate involved; that probate of a purported will of Ellen’s, devising all of the property to her son, Emmett, had been sought and denied; that defendant claimed the land by reason of an oral gift from Ellen during her lifetime, which property he claimed to have been in possession of since about 1948 and to have made permanent improvements thereon, paying taxes and liens; and that defendant had lived in one of the city properties with his mother for many years before her death.
Plaintiffs were permitted to file supplemental pleadings alleging that defendant was estopped from claiming to have received the land by oral gift from his mother by reason of his subsequent offer of Ellen’s will for probate and his claim that he received the land by inheritance, bequest or devise.
The case proceeded to trial. The jury returned a general verdict for defendant and in answer to special questions found, among other things, that Ellen Farrell in 1948 orally gave all her property to her son, Emmett; that he entered into possession of the land in that year, made valuable and lasting improvements thereon, paid off substantial liens, and otherwise materially changed his position. Plaintiffs’ motions for judgment notwithstanding the verdict and for a new trial were overruled, and they appeal. We will summarize only so much of the evidence as is necessary to consider plaintiffs’ contentions.
Plaintiffs first contend that the trial court erred in receiving in evidence defendant’s Exhibit No. 4 over their objections. The exhibit reads as follows:
“Oct. 12, 1948”
“This is to prove that I have given all my poperty to my sun Emmett Farrell and he is to take care of me as long as i live. H to pay tax and all bills and for burial of me. He is to pay all debt on land that he has not ahead paid.” “Ellen Farrell.”
[Emphasis supplied.]
In the course of defendant’s examination, he testified, without objection, that he received the exhibit from his mother and that her signature appeared at the bottom thereof. When the exhibit was offered in evidence, plaintiffs objected on the ground that it was hearsay and a part of a personal transaction between defendant and the decedent; that its admission into evidence violated G. S. 1949, 60-2804. There is no merit to plaintiffs’ contention. It will be noted that there was no objection to defendant’s testimony, nor was there any motion to strike it. Plaintiffs’ objections went solely to the admission of Exhibit No. 4 and not to the testimony of the witness. G. S. 1949, 60-2804 provides that no person shall be allowed to testify in his own behalf in respect to any transaction or communication with a deceased person where either party to the action claims to have acquired title, directly or indirectly, from such deceased person. It has been held that the disqualification of the statute runs to the witness and not to the evidence; that certain communications may be admitted, although certain witnesses may not testify to them. (Garten v. Trobridge, 80 Kan. 720, 104 Pac. 1067; Murtger v. Myers, 96 Kan. 743, 153 Pac. 497.)
Here, even if objection had been made to defendant’s testimony, the exhibit was admissible, as the witness DeYoung, a banker familiar with Ellen’s signature, also testified that the signature on the note was hers. On this- and other evidence, the exhibit was properly received. Moreover, in the exhibit, Ellen by declaring that she had given all her property to her son disavowed her proprietary interest in the property. The note was therefore admissible under the well-recognized declaration against interest exception to the hearsay rule. In Mentzer v. Burlingame, 85 Kan. 641, 643, 118 Pac. 698, we said:
“The declarations of a deceased person made against his pecuniary or proprietary interest concerning facts within his knowledge, which are material and relevant to the issue, are admissible in evidence ... (1 Ell. Ev. § 434 et seq.; 1 Greenl. Ev., 16th ed„ §§ 147-149; 1 Wharton, Ev., § 226; 2 Wig. Ev. §§ 1455-1470.) The admissibility of the evidence rests upon the improbability that one will admit that which it is for his pecuniary interest to deny.”
Testimony by witnesses Grieb and Granville that in August, 1950 and September, 1951, respectively, Ellen told them she had given all her property to Emmett is objected to by plaintiffs as being hearsay and therefore inadmissible. Ellen’s statements were declarations against her interest and admissible under the above-mentioned rule.
Plaintiffs next contend that the court erred in excluding certain exhibits and testimony. Three of the objections go to the exclusion of newspaper clippings concerning the death of plaintiff Hurley’s parents. There was no indication of the purpose for which the exhibits were offered, and we deem them irrelevant. Two other exhibits offered were public records of the Phillips county agricultural stabilization and conservation committee, which showed Ellen Farrell as owner until 1951 of the property involved herein. It was established that the information on the records came from the tenants on the property. It is clear to us that statements made by the tenants were not binding on either Ellen or Emmett and the records were properly excluded. (Brent v. McDonald, 180 Kan. 142, 155, 300 P. 2d 396.)
Another objection is to the refusal of the court to allow the court reporter in the proceedings in which probate of Ellen’s purported will had been sought and denied to read Emmett’s testimony in those proceedings to the effect that his mother owned all the property involved at the time of her death. Emmett Farrell, upon interrogation, testified:
“Q. And at that time didn’t you testify that at the time of her death that your mother owned this land — have a 240 aere farm, a residence in Prairie View and this other—
“A. (Interrupting) Well, it was in her name.
“Q. Didn’t you testify at that time she owned it?
“A. Well, anything that’s in your name, you can’t take it away from them or it aint yours until you get it in your name, that is, legally.
“Q. At that time did you feel that it was her property then?
“A. No, I didn’t feel it was her property. I felt it was mine, but legally it was her property.”
On this basis, plaintiffs sought to introduce the court reporter’s testimony, claiming that it was admissible as impeachment evidence for which a proper foundation had been laid, or as an admission of the defendant which needed no. foundation. Neither of these contentions is well taken. The evidence was neither an admission nor proper impeaching testimony and did not go to prove any issue in the case. The above-quoted statements by defendant did not contradict the statements made and sought to be introduced in the probate proceedings. In the testimony, defendant admitted that ‘legally” the property was his mother’s at the time of her death; that “it was in her name.” The court reporter’s testimony went to this point, which was admitted by the defendant, and hence there was no conflict between the quoted testimony and the testimony sought to be introduced. Indeed, the question of record ownership was never in issue but was admitted, in the pre-trial stipulation, to be in Ellen. The issue in this case was whether Ellen Farrell had made a gift of the property to her son despite the fact that record title at all times stood in her name.
Other objections by plaintiffs go to the giving of certain instructions and the failure to give other requested instructions and special questions. We need not set out in detail all the instructions and questions involved. Suffice it to say, we have carefully examined the instructions and questions submitted to the jury. We find that they accurately and fairly covered the issues raised by the pleadings and the evidence and did not unfairly emphasize defendant’s side of the case. The requisites of a valid oral gift were defined and given to the jury, as was the question of estoppel. Plaintiffs’ requested instruction and special question dealing with the issue of contract to make a will or promise to make a gift in the future were not supported by the pleadings or the evidence adduced at the trial.
Similarly, plaintiffs protest the court’s action at the hearing on the motion for new trial in sustaining defendant’s objection to the offer of testimony by Loren Gould, the foreman of the jury, to the effect that he thought the evidence showed an agreement by Ellen Farrell to will the property in question to Emmett Farrell. This testimony was properly excluded as an attempt to impeach the verdict of the jury. In Anderson v. Thompson, 137 Kan. 754, 758, 22 P. 2d 438, we said:
“Public policy forbids that after the jury has tried the case the court shall, on motion for new trial, proceed to try the jury. A verdict may not be impeached by an inquiry which reaches a juror’s views or the reasons for those views (L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 558), or which reaches what influenced those views (Matthews v. Langhofer, 110 Kan. 88, 202 Pac. 634; Jones v. Webber, 111 Kan. 650, 207 Pac. 837; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312). Besides that, the jury being what it is, jurors will act like human beings in the jury room, and will indulge in bluster and hyperbole and animated irrelevancies. Not only does the law presume a juror respects the obligation of his oath and votes his convictions, but generally he in fact does so; and due allowance must be made for some exuberance in jury-room discussion or the court must keep on granting new trials in important cases until a perfectly spiritless jury can be secured.”
Plaintiffs contend that the court erred in overruling their motion for judgment notwithstanding the verdict, basing their contention on the answers to special questions regarding the time certain expenditures and improvements were made on the property by defendant and that some were subsequent to Ellen’s death. Plaintiffs overlook the fact that the jury found defendant, after and in reliance upon the oral gift of the land by Ellen and with her knowledge and consent, made lasting and valuable improvements thereon, paid off substantial liens, took care of his mother for many years, and otherwise materially changed his position. No motion to set aside these findings was ever made, nor do plaintiffs contend there was a lack of evidence to sustain them. We state in Long v. Foley, 180 Kan. 83, 299 P. 2d 63, our often-repeated rule that a motion for judgment on the special findings non obstante veredicto admits that for purposes of ruling on the motion all special findings are supported by evidence and unless such findings clearly overthrow the general verdict such verdict must be permitted to stand. (5 Hatcher’s Kansas Digest, Trial, § 312.) Moreover, it is stated in Cain v. Steely, 173 Kan. 866, 252 P. 2d 909, that a general verdict imports a finding in favor of the prevailing party upon all the issues in the case not inconsistent with the special findings, which are to be given such a construction, if possible, as will bring them into harmony with the general verdict; and in considering answers of the jury to special questions, the court is not permitted to isolate one answer and ignore others, but all are to be considered together, and if one interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted. In the instant case we have carefully analyzed the answers to the special questions and find them, when construed together, to be in harmony with the general verdict.
Plaintiffs’ other contentions have not been overlooked. They have been considered and found without merit sufficient to justify a reversal of the judgment.
The judgment of the lower court is affirmed.
It is so ordered.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant in error was the owner of the southwest quarter and the south half of the northwest quarter of section 6, township 5, range 21. These lands formed a contiguous tract, and were all used for k single purpose as one farm. In other words, the defendant in error owned a single farm of 240'acres — the land all compact, contiguous, and devoted to the one use. Through this single farm, the railroad, the plaintiff in error, condemned a right-of-way. This right-of-way ran through the farm, entering on the south line of the southwest quarter, and passing out on the north line of the south half of the northwest quarter. The amount of land actually taken was 9-j^-acres, appraised by tbe commissioners at $567. The damages to the balance of the farm were by such commissioners placed at $500. Independence creek, which at this place is the boundary line between Atchison and Doniphan counties, runs in a curved but irregular line through said southwest quarter-section, leaving on the southwest side some 50 or 60 acres in Atchison, and the balance of the farm entirely in Doniphan county. The land actually taken for the right-of-way is wholly in the latter county. From the award made by the commissioners, defendant in error appealed to the district court of Doniphan county, and upon the trial of such appeal before a jury, recovered a verdict'and judgment of $2,200. The condemnation proceedings were had in Doniphan county, and the appeal was made to the district court of Doniphan county. And the first and principal question arises upon the claim of the railroad company, that no damages could be awarded in this proceeding for any injuries done to that portion of the defendant in error’s farm lying in Atchison county. The argument is, that the jurisdiction of the district court of Doniphan county is limited by the territorial boundaries of that county; that it therefore has no power to inquire into injuries done to plaintiff’s land in another county; that these condemnation proceedings are purely statutory, and contemplate a separate action in each county, and that therefore this judgment would be no bar to a proceeding by plaintiff in the district court of Atchison county to recover damages for injuries to his land in that county, caused by the construe tion of the railroad. We think the ruling of the district court was correct. Gough’s land constituted a • i j? *. , • < i i ¶ single i arm; it was an entirety, and as such he ° , _ was entitled, to recover damages done to it as a whole. See the case of Rld. Co. v. Merrill, 25 Kas. 421, in which an award of damages to a tract of 960 acres was sustained, although the railroad track crossed but a single quarter-section, and that separated from the balance of the land by a public highway, on the ground that the entire body of land was used for a single purpose — as a stock ranch— and that the plaintiff was entitled to recover damages to such ranch as an entirety. See also, Reisner v. Depot Company, 27 Kas. 382, in which the owner of two adjacent lots was held entitled to recover damages to the two lots, although only a portion of one was actually taken, on the ground that the two were used for a single purpose — that of a hotel yard. That the county line ran through Gough’s farm, did not destroy the singleness of its use, or the fact that all the lands constituted but one farm. It was the farm as a farm, and not the separate acres of land, which was injured. The extent of the injury in such a case depends largely upon the relation of the different parts of the farm to each other, the situation of the buildings in respect to water, pásture, timber and field. No adequate adjustment of compensation can be made except by treating the farm as a whole. This is obviously contemplated by both constitution and statute. Again, under the statute and the facts as they appear from the testimony, no proceeding could be had in Atchison county. For the statute only authorized condemnation proceedings in a county in which the corporation proposes to construct its road; and no part of this proposed road is shown to run through the county of Atchison. So that unless Gough can recover in this action, he can recover only a partial amount of the injury to his farm. Still again, the district court is a court of general jurisdiction. Both Gough and the railroad company were parties to this action, and if by the proceedings it affirmatively appears that Gough has recovered all the damages done to his entire farm, such judgment would be a bar to any claim which he might hereafter make for damages to any particular portion. And still further, the full record of the condemnation proceedings is not before us. We do not know who instituted them, or upon what arrangement or agreement they were carried on. So much of the record as is preserved shows that the commissioners awarded damages to the entire farm, ánd not simply to that portion in Doniphan county; and that the railroad company deposited the amount of that award with the county treasurer of Doniphan county. If it thus assented to the adjustment in Doniphan county of the damages to the entire farm, it would seem as though thereafter it could not question the validity of an inquiry into such damages. Our conclusion therefore is, that the ruling of the district court was correct and must be sustained. We do not carry our decision beyound the facts of this case. It is unnecessary to determine what would be proper proceedings where a farm lies in two counties, and the railroad track runs through portions of it in each county.' Nor is it necessary to determine what would be the rule of compensation if, as suggested by counsel for plaintiff in error, a state instead of a. county line divided a farm. Perhaps the doctrine that the laws of a state have no extra-territorial force would limit the scope of inquiry and the measure of compensation. Here the entire farm was within the state, all subject to its laws and entitled to its protection. The same rule of compensation exists in one county as another, and in view of the fact that the railroad track did not touch any portion of the farm in Atchison county, and that the inquiry before the commissioners extended without apparent question to the damages to the entire farm, we think that the ruling of the district court must' be sustained. The case of L. T. & S. W. Rld. Co. v. Paul, 28 Kas. 816, disposes of plaintiff in error’s second objection, that the jury were not required to separately state each fact which rendered the construction of the railroad an injury to the farm, and the amount of damage which such fact by itself wrought. That the general verdict was less than the total of the various mat ters of damage stated by the jury, in answer to special questions, is a benefit rather than an inj ury to the railroad company, and therefore a matter of which it cannot complain.
So far as the instructions are concerned, we see nothing of which the railroad company could justly complain. We do not understand the one in reference to farm-crossings as implying all that counsel for plaintiff in error claims. The statute does not require the company to go to the expense of constructing farm-crossings, and.the court simply instructed the jury that the probable expense of constructing and maintaining them' was a matter to be considered by the jury in their estimate of damages. This does not imply that the land-owner has a right to plank the whole extent of the railroad track, and build approaches all along such track, so that he can cross any and everywhere with his teams, and that the jury are justified in giving the entire expense of such construction and maintenance as a part of the compensation of the land-owner.' It implies simply that the land-owner has a reasonable right to farm-crossings at such places as the necessities of his farm demand, and as will not interfere with the paramount rights of the railroad company, and that the expense of the construction and maintenance of such reasonable crossings is a matter to be considered by the jury in fixing the amount of compensation. We see nothing else requiring notice; and no error appearing, 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.:
This is a contest over a county-seat election. Passing by all the preliminary questions, we find these facts as stated by the court: The result of the election for the county seat of Ness county showed that Ness City received 390, Sidney 276, Waterport 50, and Clarinda 14 votes; apparently, therefore, Ness City received a clear majority of all the votes cast, and was by the county commissioners duly declared the county seat.. It further appears from the findings of the court, that said Ness City was unincorporated at the time of said election; that the owners of the town site offered to the county of Ness every alternate undeeded lot in said town, containing and amounting to sixty-five acres of land, provided said county seat was located at Ness City; that certain parties, the owners of an addition to Ness City, offered ninety acres to the county upon the same conditions, and also that three of said owners of the town site executed a penal bond to seven electors named therein, in the sum of $250, for the conveyance to the county of fifty acres at and near Ness City, in case the said electors should vote for Ness City and it should become the county seat; that the value of this property thus offered to Ness county was $1,000; that some 135 legal voters of Ness county were influenced in whole or in part by these offers to vote for Ness City as the county seat, and that had it not been for these offers Ness City would not have received a majority of the votes.
Notwithstanding these facts, the district court sustained the result of the election as declared by the commissioners, and now the plaintiff alleges error. That a purchased vote given for an individual candidate for office is not to be counted, is conceded. So also that a candidate r> on i -t . _ for office who purchases a vote therefor is not to have the office, is also beyond question. Our statute respecting contesting elections provides as one of the grounds of contest, that “the contestee has given or offered any elector, or any judge, clerk or canvasser of the election, any bribe or reward, in money, property, or thing of value, for the purpose of procuring his election.” (Comp. Laws 1879, p. 403, §85, ¶4.) As a consequence of these rules it has been held, that a candidate for an office to which is attached a fixed salary, who offers to the electors to discharge, if elected, the duties of such office at less than the stated salary, is not entitled to have counted for him any votes given in consideration of such promise. (State, ex rel., v. Purdy, 36 Wis. 213; State, ex rel., v. Collier, 72 Mo. 13; Carrothers v. Russell, 53 Iowa, 350. See also Nichols v. Mudgett, 32 Vt. 546; Cooke v. Shipman, 24 Ill. 614; Tucker v. Aiken, 7 N. H. 113; State, ex rel., v. Olin, 23 Wis. 309.) In the case from 36 Wis., supra, the court, after referring to a number of authorities, uses this language:
“ The doctrine which we think is established by the foregoing authorities, and which we believe to be sound in principle, is, that a vote given for a candidate for a public office in consideration of his promise, in case he shall be elected, to donate a sum of money or other valuable thing to a third party, whether such party be an individual, a county, or any other corporation, is void.”
We have no doubt of the correctness of this doctrine; and in view of the fact that the great danger which now lies in the path of free institutions is the use of money in elections, the scope of this healthful doctrine should in no manner be limited or abridged by the courts. The purity of the ballot-box should be insisted upon at all times and in all places. Only in that way can be upheld and maintained the integrity, and therefore the permanence, of popular government. Counsel for plaintiff in error invoke the application of this doctrine, and insist that it is controlling in this case and compels a reversal of the judgment of the district court. Counsel for the defendapts in error insists that there is a marked distinction between the cases cited and the one at bar; that no authority can be found vitiating an election like this; and that it would be a gross interference with the freedom of the electors to deny them the result of this election. He refers to the case cited by the other side from 36 Wis., and calls attention to the following language of the court, drawing a distinction between that case and one like the present:
“Reference should be made to the cases which have sustained the validity of bids or pecuniary offers to secure the location of public buildings at some particular place. We have no controversy with these cases here. The distinction between the election of public officers, to whom for the time being the exercise of the functions of sovereignty is intrusted, and the mere choice of a site for a public building, is quite apparent. The former involves, or may involve, the integrity of the government and the preservation of the principles upon which it is founded; while the latter is only a matter of public convenience or pecuniary interest, involving no fundamental principles whatever.”
It becomes necessary to analyze the principles which underlie the decisions cited, in order to ascertain how far they are applicable here. When a candidate gives an elector personally money or property, there is a direct attempt to influence his vote by pecuniary considerations. The expectation 'is that such vote will be controlled, not by the elector’s judgment of the fitness of the candidate for the office, but by the pecuniary benefit he has received. In other words, it is money and not judgment which directs the ballot; and so the election turns not on considerations of fitness or public good, but of private gain. Let such be tolerated, and elections will be simply the measure of the size of the candidates’ purses. In the closing and degenerate days of Rome’s august empire, preceding its immediate downfall, the imperial purple was sold at public auction to the highest bidder. Equally base and equally significant of present decay and impending downfall would be the toleration of the private purchase of electoral votes. That which is wrong when done directly, is equally wrong when done indirectly. Salaries are paid by taxation, and when a candidate offers to' take less than the stated salary, he offers to reduce pro tanto the amount of taxes which each individual must pay. If the candidate went to each elector and offered to pay one dollar of his taxes, that clearly would be direct bribery; and when he offers to take such a salary as will reduce the tax upon each tax-payer one dollar, he is indirectly making the same offer of pecuniary gain to the voter; so that those cases rest upon' the simple proposition that the election of a candidate for office cannot be secured by personal bribery offered directly or indirectly to the voter. A notable ease illustrating this principle took place in Massachusetts in 1810. At that time each town was required to pay the expenses of its own representatives in the general assembly. The town of Gloucester was entitled to six members, but for economical considerations the town had been in the habit of sending only two. For political reasons, that year it was thought best to send the full delegation, and with a view to induce the town to do this, certain citizens gave a bond, conditioned that the expense of the full delegation should not exceed to the town- the pay of two members; and thereupon a full delegation was elected. Although the members elected had no agency in procuring such bond, the house of representatives, by a vote of 224 to 125, declared the election void, and the seats of the entire delegation vacated. (Reports of Controverted Election Cases, by Cushing, Story, and Josslyn, 97.)
A further question may arise when the offer of the candidate carries with it no pecuniary benefit to the voter. As, for instance, should a candidate for a county office offer to give if elected a portion of his salary for the erection of a public fountain; or, if a candidate for t a'state office should offer if elected to endow a chair in some college: here it may be said that the voter is in no way influenced by considerations of personal gain. He receives no money in hand, his taxes will not be reduced, and he may in no manner.be pecuniarily benefited by the donation. This presents a case going still beyond those which have been decided, and yet very probably the same decision should control such a case, and for this reason: wrong considerations are thrown into the scale to influence the vote of the elector. The theory of popular government is that the most worthy should hold the offices. Personal fitness — and in. that is included moral character, intellectual ability, social standing, habits of life, and political convictions — Is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least, bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter.
Do these considerations apply to the case at bar? We think not, and for these reasons: There is no question of moral character or personal fitness involved: the question is really and solely one of convenience and material advantages. A state capital or a county seat is selected because of the supposed material advantages it offers for the transaction of public business. Among these are centrality of location, convenience of access, the number and condition of the roads leading to and from it, the halls, office rooms, hotels, and other conveniences which it may have for the accommodation of those having occasion to visit such capital or county seat, and for the transaction of public business there. It is therefore primarily, if not solely, a question of material advantages, and an offer by a municipality or any of -its citizens to increase those advantages introduces no foreign or improper matter to the consideration of the voter. If of two towns, candidates for the county seat, the one has good roads, bridges, and other means of access from all parts of the county, and the other has not, every voter in casting his ballot considers, and has a right to consider and be influenced by such superior and material advantages; and if neither place is so fortunate in this respect, and the citizens of either proffer to furnish such conveniences, such proffer presents a consideration which may fairly be weighed by the voter. Therefore his thought is not turned away from the true question before him: such considerations enter into and form a part of the fitness of the place. The choice of a county seat is like the location of a railroad — a purely business question, and determined by the material advantages offered. As it is no offense against morals or public policy for the citizens of a place to offer material inducements for the location of a railroad, neither is it for them to offer inducements for the location of a county seat. The history of every state is full of instances irp which the location of a county seat, a capital, or a public institution, has been secured by the offer of material inducements, and no case have we been able to find in which such location has thereby been declared void. In the contest over our own state capital, it is a well-known fact that the city of Topeka offered to donate the present state-house grounds, if the capital were located here. Doubtless that offer influenced many votes, yet no one for a'moment supposed that the election was thereby invalidated. The legislature of 1863 attached as a condition to the location of the normal school at Emporia, a provision that a tract of twenty acres, adjacent to the town site, should be donated and secured to the state. The Osborne City company built a court house, and donated it) with the block on which it stood, to Osborne county, on condition that the county seat should be located at Osborne City. (Yoxall v. Comm’rs, 20 Kas. 581.) And within the knowledge of us all, many similar instances have occurred in the history of this state. It is true that the frequency with which an act is done does not establish its moral character, or prove that it is right. But still, the .fact that it has occurred so often and has been hitherto unchallenged, especially when .there is so much feeling as there is in county-seat election cases, is some evidence tending to show that in the general judgment there is nothing immoral or improper in such act. So far as authorities can be found, they sustain the foregoing conclusions. The ease of Dishon v. Smith, 10 Iowa, 212, is directly in point. There the citizens of the town of Marshall, a contestant for the county seat, offered to pay $500 for the building of bridges across the Iowa river, upon the express condition that the citizens of Marion township would vote for Marshall as the county seat; they also offered certain real estate in the town of Marshall to the county, upon the condition that the people should locate the county seat at said town. And it was held that- such acts were not bribery, and did not invalidate the election. In discussing the question, the court uses this language :
“We do not think the giving facilities for the public convenience to the whole county, such as furnishing a building for the courts and offices, and thus relieving the county from a burden of expense, amounts to bribery. Nor would the giving property, though not of that specific character, but yet adapted to reducing the expense of a change. If the people of a town desire a county seat located at such' place, there is no wrong and no corruption in their offering and giving facilities to produce that result. Either in buildings and offices direct for the use of the public, or in property or money to produce the facilities, they may offer to take away or to lessen the pecuniary burden which would come upon that public, the county, by the location, or by a change of location. And this cannot be bribery. And it may be doubted whether .such an act can become bribery when the offer is to the whole county, and upon a matter of county interest only.”
The recent case of Hall v. Marshall, Kentucky court of appeals, December 16, 1882, 2 Ky. L. J. 518, is also directly in point. In State, ex rel., v. Supervisors, 24 Wis. 49, it was held, that the legislature could lawfully provide that after a majority of votes had been cast in favor of the removal of a county seat to a certain city, it should not be removed to such city until it had placed at the control of the county supervisors a specified sum of money. See also Commissioners v. Hunt, 5 Ohio St. 448; Newton v. Comm’rs, 26 Ohio St. 618; same case, 100 U. S. 548; Twiford v. Alamakee County, 4 G. Greene, 60; People v. St. Claire County, 15 Mich. 85; Attorney General v. Supervisors, 33 Mich. 289; County v. Patterson, 56 Ill. 111; Gilmore v. Haworth, 56 Tex. 89; Calaveras County v. Brockway, 30 Cal. 325; Alley v. Denson, 8 Tex. 197; Adams v. Logan County, 11 Ill. 337; Armstrong, et al., v. Com., 4 Blackf. 208. Our own statute seems also impliedly to recognize such a transaction, (Comp. Laws 1879, p. 313, ch. 26, § 2,) for it speaks of the donation of county buildings, which common experience shows is seldom made except as a condition of securing a county seat.
We think, therefore, in conclusion, that while the court should be careful not to sanction anything that looks like bribery, or which will interfere with the purity of elections, it cannot be adjudged in this case that the acts complained of were such as would vitiate the election, or deny to the electors the county seat which they have chosen. The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by M. A. Bates against J. R. Parker, for the recovery of certain drugs, medicines, and other articles constituting a part of a drug store. It appears that, some time prior to the commencement of this action, one J. H. Lawson obtained a judgment before a justice of the peace of Harvey county, Kansas, against C. H. Bates, the husband of the plaintiff in this action, and caused an execution to be issued on such judgment, which execution was put into the hands of J. R. Parker, the defendant in this action, who, as constable, levied the same upon the property in controversy, as the property of C. H. Bates. Soon thereafter, M. A. Bates, the wife of C. H. Bates, replevied the property from the constable, claiming the same as her own separate property. A trial was had in the district court, before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff and against the defendant for the recovery of the property, and for $50 as damages for the wrongful detention thereof. For the reversal of this judgment, the defendant now brings the case to this court.
The first and one of the principal propositions advanced by the plaintiff in error, defendant below, is that the plaintiff below, M. A. Bates, having originally invested only about $100 in the drug business, and then having intrusted it to the management of her husband as her agent, under whose management the stock was increased in value to the amount of $700 or $800, that thereby the stock became his and she became only a preferred creditor, entitled only to the money originally advanced by her and interest thereon. This proposition we think is not correct; but even if it were correct, it would at least be questionable whether the result which the plaintiff in error claims would necessarily follow. According to the evidence of the plaintiff below, the goods belonged to Mrs. Bates at the time of the commencement of the drug business in August, 1879, and they continued to belong to her up to the trial of this action in October, 1881. The business was at all times carried on in her name, and her husband had no other connection with the business or with the goods than merely to manage the business as her agent. Now if this evidence is true, then we do not think the goods ever became the property of the husband, or that he ever had any interest therein. (See act relating to married women, Comp. Laws of 1879, ch. 62; Tallman v. Jones, 13 Kas. 439; Monroe v. May, 9 id. 466.) The mere fact that the stock increased in value under the management of Bates could not make the property his. But if the title to the property could be changed or transferred in such a manner, would the property become Bates’s when the property bad increased in value one dollar, or five dollars, or fifty dollars, or four hundred dollars? The increase was gradual from the time Mrs. Bates went into business, in August, 1879, up to about May, 1881. We think no change or transfer of title occurred.
The next proposition of plaintiff in error is, that the verdict and judgment are against the preponderance of the evidence. Now we cannot reverse the judgment for that reason only, when manifestly there is sufficient evidence to sustain the verdict and judgment.
The third proposition of the plaintiff in error is, that the court below erred in overruling the motion of the plaintiff in error, defendant below, for a new trial, on the ground of surprise which ordinary prudence could not have guarded against. On the trial, the defendant below attempted to prove that C. H. Bates put about $450 of his own money into a grocery business in March, 1879, and that afterward he sold his interest in the grocery and put the proceeds thereof into the drug business, which drug business included the property now in controversy. The defendant proved on the trial that Bates said he put this money into the grocery business, and introduced evidence tending to prove that the same was true; but Bates himself testified that he did not invest this money either in the grocery business or in the drug business, but that he paid it out to various persons not furnishing any goods for or having any connection with either the grocery business or the drug business. Here is where the defendant claims to have been surprised. He claims that he was surprised that Bates testified that he paid this money to these various other persons above mentioned, and he now wishes to obtain a new trial for the purpose of proving by these various persons, four or five in number, that Bates did not pay to them the amounts which he testified he paid to them, but that he paid to them about $275 less than he testified that he paid to them. It will therefore be seen that the' defendant desires the new trial principally for the purpose of impeaching the testimony of C. H. Bates, and not for the purpose of obtaining evidence to prove or disprove any material fact in the case. The mere fact, if it be a fact, that Bates did not pay certain money to certain persons who have no connection with this case, is not material in the case. If the defendant should prove, as he claims he can prove, that Bates did not make the payments which he testified he made to these various persons, that would not at all prove that he invested the money in the grocery business or in the drug business. It would not prove what he did with his money. He might have used it in a thousand different ways without putting one cent of it in either the grocery business or the drug business. But what difference can it make even if he did put it in the grocery business? Mrs. Bates admits that over $300 of the money which she invested in the drug business were the proceeds of the sale of the grocery. She says that when her husband sold the grocery he paid her out of the proceeds thereof over $300, which amount he had sometime previously borrowed of her, and that she invested that amount with other money in the drug business.
A new trial is seldom granted for the purpose of per mitting a party to introduce merely impeaching testimony. Generally, where a new trial is granted for the purpose of permitting a party to introduce additional evidence, the additional evidence must go to the merits of the case. And generally, also, the evidence should not be merely cumulative, as we think the evidence proposed to be introduced in this case is. There was evidence introduced on the trial tending to contradict Bates; and the proposed evidence, for the opportunity of introducing which' the new trial is now asked, is intended for precisely the same purpose. Besides, the defendant below, plaintiff in error, could not have been so very greatly surprised, for the drug business had been carried on for nearly two years in the name of Mrs. Bates before the goods were replevied; and the defendant must have known that the plaintiff, Mrs. Bates, claimed the goods as her own, and that if the defendant should introduce any evidence tending to show that O. H. Bates had any interest in the goods, or had invested any money therein, that the plaintiff Would introduce other evidence tending to contradict or explain away such evidence. We would hardly think that the surprise of the defendant was of such magnitude or materiality as to authorize a reversal of the judgment of the court below.
The fourth proposition of the plaintiff in error, defendant below, is, that the damages found by the jury are excessive. The damages assessed are $50. It would seem to us that this is more than the jury should have allowed; but still, the damages do not appear to be so excessive as to show that the jury were governed by passion or prejudice, or as to authorize this court to reverse the judgment of the court below, which approved the verdict of the jury.
The judgment of the court below will be affirmed.
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Per Owriam:
The judgment in this case is affirmed, on the authority of McVey v. Burns, 14 Kas. 291; Civil Code, § 397, ¶ 1; id., §398. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendants in error are the parents of one D. P. Baughman, deceased. As parents they claim to be his sole heirs. Plaintiff in error, defendant below, claims to have been the wife, and to be the widow of said D. P. Baughman, and therefore, there being no children, the sole heir. The single issue presented is, whether plaintiff in error was legally,married to said D. P. Baughman, and therefore, as his widow, legally entitled to inherit his property. In support of her claim to the fact of the legal marriage, and that she was the widow of the said D. P. Baughman, she offered her own testimony and the .testimony of two other witnesses, that they were present at Eureka Springs, Arkansas, and witnessed the marriage ceremony between herself and deceased. All this evidence was rejected, the court holding, that record evidence was essential to prove the fact of marriage. In this we think the court erred. The laws of the state of Arkansas, in which this marriage is claimed to have been made, are not before us. We may not presume them different from the common law, or different from our own statutes. (French v. Pease, 10 Kas. 54; Furrow v. Chapin, 13 Kas. 113; Railway Co. v. Cutter, 16 Kas. 571.) Under our own laws and under the common law, the fact of marriage is provable, not alone by record evidence, but by the testimony of those who were present and witnessed the ceremony. (Wolverton v. The State, 16 Ohio, 173.) In this case, the court says: “Upon this theory it w;ould follow that the marriage could not be proved by a person present at the ceremony, and yet such proof is always admissible.” In 1 Bishop on Marriage and Divorce, §494, it.is said: “Anyone who is present at the marriage may be witness to prove the fact. Proof by witnesses present has been deemed better than proof by the record.” See also 2 Greenleaf on Evidence, §§461 and 462; also 2 Wharton’s American Criminal Law, (4th ed.,) §§ 26 and 30, and cases cited in notes; Hayes v. The People, 25 N. Y. 397; O’Gara v. Eisenlhor, 38 N. Y. 298; Patterson v. Gaines, 6 How. U. S. 550. Our own statute, (Comp. Laws 1879, ch. 33, § 8,) supports this view; for under it, continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid, and that right is the right of inheritance, the right claimed in the case at bar. We think under all the authorities and under our own statutes, the court erred in rejecting the testimony offered. In any civil action, in the absence of a statute positively prescribing other testimony, the fact of marriage can always be proved by the testimony of those who were present at and witnessed the ceremony. We do not think our statute concerning marriages changes this rule of evidence. Notwithstanding a license is now required; that the statute provides for a marriage ceremony, and punishes as for a misdemeanor persons living together as man and wife without being married; notwithstanding also that a record is kept of the licenses issued, as well as the returns made by the officials performing the marrige ceremony; notwithstanding this record is evidence of the fact of marriage, (State v. White, 19 Kas. 449,) yet such récord is not the only evidence. Parol testimony is admissible now as before the statute. A little reflection will satisfy one of the necessity of this. The record of the issue of a marriage license does not prove that the parties were in fact married, for after the issue’of the license, either party may decline to go further, and until the ceremony there is no marriage; and aftér the ceremony, if the official performing the ceremony fails to return his certificate thereof to the probate judge, such omission does not invalidate the marriage. It is a matter of common knowledge, that through forgetfulness, or from other causes, many of these licenses are never returned to the probate judge after the ceremony. It would be strange in these cases if evidénce of the marriage was not attainable. Further, as the official performing the ceremony is not required to return the license for thirty days, cannot the party prove his marriage until after such time? We think nothing in our statute changes the well-established rule of the common daw, that a marriage may be proved by the testimony of those attending and witnessing the ceremony.
The judgment of the district court will be reversed, and the ease remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The record in this case is complicated, and it . has puzzled us not a little to get at the exact facts. We think, however, that two questions are presented, upon which hangs the decision of this case. In order to understand these ques-a brief statement of the facts is necessary. In January, 1880, one John W. Larimer, in Rooks county, was in failing circumstances. To secure certain creditors, he executed a chattel mortgage. Thereafter, certain other creditors brought suit and obtained judgments before a justice of the peace, and upon executions thereon levied upon the goods. The mortgagees then brought replevin. At the same time, certain other .actions were pending against the mortgagor. On the 25th of May, while these various suits were pending, the following stipulation was made and entered into:
“Know all men by these presents, that whereas there are divers matters of dispute between the undersigned, and divers suits now pending between the undersigned in the district court of the county of Rooks and State of Kansas; and whereas it is' desired to avoid the expense of further litigation, it is hereby agreed that all of said suits be dismissed by the several plaintiffs named in each, and that all right of action in any attachment or replevin bond therein filed be and the same is hereby waived and surrendered. That the ownership of all property heretofore in dispute is confirmed in the present possessors thereof; that it be and is hereby submitted to David M. Johnson, Esq., and W. C. Don Carlos, Esq., to arbitrate and settle the following questions in dispute, to wit:
“ First: Who shall pay the cost in each particular action now pending in said court Between the undersigned or any of them.
“Second: Whether any money is due Joseph McNulty for the value of goods claimed by him and sold By the creditors of J. W. Larimer, and if there is, how much, and how it shall be paid?
“Third: Whether, in consideration of the release by the creditors of J. W. Larimer, secured by his mortgage bearing date the 10th day of December, 1879, of the balance of their respective claims against him, the proceeds of the sale of the property mortgaged should be divided between all the creditors of the said Larimer who will agree to release him after paying all of the costs and expenses of collecting the same and settling said suits, or should be only distributed among the creditors named in said mortgage?
And it is further stipulated and agreed, that upon the decision of these questions, and the execution of the awards of said arbitrators, all matters of disagreement between the parties hereto shall be settled. And it is further stipulated and agreed, that said arbitrators may proceed forthwith to a hearing and a determination of the questions herein and hereby submitted to them, without any notice to the parties hereto; and in case of any disagreement between themselves, .they may submit any matter of dispute between themselves to a third person, to be chosen by themselves, who shall decide such matters of dispute between them.
(Signed) J. W. Larimer,
Joseph McNulty,
John S. Brittain,
John D. Richardson,
Charles S. Kemper,
George C. Smith,
Partners as John S. Brittain & Co.
Hiram Patterson,
Chas. W. Noyes, and W. S. Norman,
Partners as Patterson, Noyes & Co.
Julius Kuhn,
Thomas J. Shay, and Louis J. Kildorf,
Partners as Shay, Kildorf & Co.
Quigg & Allen,
A. B. Symns, and
T. F. Vannatta,
Partners as Symns, Turner & Co.
John Shaw,
Marvin Randall,
S. S. Boggs,
Alfred Reed,
L. J. Keeney,
M. J. Keeney,
L. P. Birohfield,
By Judson & Motter, Atty’s.
L. C. Smith, Att’y. ¡
A. L. Patchin, Att’y. *5
Chas. C. Woods, Att’y.]£
Jerome Aydelotte.
W. E. MgDuffey.”
Thereupon the arbitrators named proceeded' to an arbitration, and-made the following award: (
“State oe Kansas, Rooks County. In the matter of the reference of the issues and differences between the parties named in the attached agreement of reference to Messrs. D. M. Johnson and W. C. Don Carlos, referees, for their determination and adjustment:
“David M. Johnson and W. C. Don Carlos, referees above named, do find that the costs in the case of Joseph McNulty against L. P. Birchfield, and against John Shaw and Keeney and wife, shall be paid by the defendants, and -that each party in all the other cases shall pay the costs that he or they have made or caused to be made.
“Second. We find that Joseph McNulty is justly entitled to the sum of one hundred and fourteen dollars and one cent, for the value of the goods claimed by him and sold by the creditors of J. W. Larimer, and to be by them paid to the said Joseph McNulty.
“Third. We find and recommend that the proceeds of the sale of the property mortgaged by the said J. W. Larimer to certain 'of his creditors therein named, shall be retained by the said mortgagees, and divided by them pro rata, according to their respective claims, and that they, the said mortgagees, shall give to the said J. W. Larimer full acquittance for their respective claims.
(Signed) D. M. -Johnson.
“May 25, 1880. Vm. C. Don Cáelos.”
Which stipulation and award were taken to the district court, and filed in this suit. Thereupon the court, Judge Holt presiding, rendered a judgment in open court, dismissing this suit as per stipulation and award, and made the following entry on the judge’s docket:
“Dismissed by plaintiff, each party paying his own costs. A full release for all claims for damages, upon replevin bond. Stipulation on file.”
Immediately thereafter on the judge’s docket, there appears as a part of the same entry,'these words:
“E. I). Frost, Samuel Larimer, R. L. McDonald, & Co., et al. Allowed sixty days in which to answer. Plaintiffs or co-defendants allowed thirty days thereafter to plead thereto, and this case continued.”
No entry of any order suggested by these minutes was placed upon the journal. Thereafter, Judge Holt’s term' having expired, and he having been succeeded by Judge Nellis, application was made for a nunc pro tunc entry on the journal, and the first question is as to the entry which properly should have been made. It is obvious that this minute as made by Judge Holt is apparently contradictory; part of it indicates a dismissal and determination of the case; part of it contemplates a further continuation of the proceedings. On the hearing of the motion for the nunc pro tunc entry, the affidavit of Judge Holt was read, in which he stated in substance that this stipulation and award were submitted to him for his judgment upon one day, and that thereupon he ordered the dismissal as per stipulation, and made the first part of the minute above referred to; that the next morning, and after some of the counsel had left the city, one of the counsel now appearing for plaintiffs in error came into court, and stated that he represented parties who were defendants in said action and who had never signed such stipulation; and thereupon, considering that parties who had not signed such stipulation were not bound by its terms, he made the orders of the second part above referred to; and that if the statement that they were parties to the suit was not correct, such subsequent orders were made under a mistake of fact, and being made in a suit already dismissed, were. nullities. The district court, Judge Nellis presiding, found in accordance with the statements of Judge Holt, and directed an entry on the journal dismissing the action as per the stipulation; and whether this ruling was correct, is the first question presented. Sundry affidavits were presented on both sides of this motion; several of them to the effect that immediately upon the filing of the stipulation and award, the counsel for the present plaintiffs in error arose and insisted upon their clients’ rights, and demanded an opportunity of being heard; and thereupon the court ordered, as indicated in the last part of the minute. As a matter of fact, the present plaintiffs in error had not theretofore been made parties to the record. They were respectively plaintiffs to the action in which Aydelotte, as constable, held pirocess. They never had been substituted for him; he on the face of the record was the single adverse party, representing, it is true, their interests, but nevertheless the single party to the record. Now while possibly the memory of Judge Holt may have been at fault as to the order and the time in^, which thesq.;transactions took place, we cannot think that the court erred in accepting his statement as correct. As a question of fact, and looking simply to the affidavits, it may be doubtful whose recollection is the better; and being a doubtful question, the finding of the trial court concludes us.
Again, the order in which the entries are made on the judge’s docket, indicates that the dismissal pre- ° ° 7 . I cecjec| tlie attempted leave to plead. Further, the plaintiffs in error had never ffieen made parties to the record, and until so made were entitled to no orders in the case; so that we think it fair to hold that the district court committed no error in ordering spread upon the journal a nuno pro tuno entry of the dismissal of the case.
Further, it may be noticed that the stipulation for dismissal was signed by all the parties who were at the time parties to the .record; and this brings us to the second question, and that is, How far the action of the constable in signing this stipulation concludes those who were plaintiffs in the actions in which he held the process? The answer to this question must be, that his action is conclusive so far as the termination of the present suit is concerned. Counsel say that he had no interest in the property — was merely a nominal party, and could take no action prejudicial to the rights of the real parties in interest. It is true he had no personal ownership, and was acting in a representative capacity; but he had the possession of the goods, and the question was as to his right of possession. He was the sole party to the record, so far at least as this inter-est is concerned. The statute; authorized the substitution of the plaintiffs to the execution as parties to the action; but they had not availed themselves of this right. Apparently they were willing to intrust him with the management of their interests and the control of their rights. He could then make a valid agreement for the dismissal of the action against him. This is what he did, and we think ° # that concludes the present litigation. Of course we decide nothing as to how far his action in this respect exposes him to personal liabilities to the plaintiffs in those executions. If. they did not authorize his action, and it was prejudicial to their interests, he may be responsible to them in damages. Neither do we hold that the trial court might not after the signing of such stipulation, upon satisfactory showing by the’ plaintiffs in the execution, refuse to recognize and enforce it because prejudicial to their rights, and might not also, substituting them as parties, intrust them with future control of the case; but nothing of that kind arises in this case. Though several months intervened between the commencement of the suit and the order of dismissal, they did not apply for any substitution, but permitted the constable to remain as the party defendant. After he had signed the stipulation for dismissal, and after the action had in fact been dismissed, they come into court, and not upon the plea' that the action of the constable was unauthorized by them, or was prejudicial to their interests, but upon the single and mistaken claim that they were parties to the action, obtain an order for continuance and leave to plead. We conclude that the- constable had power to sign such a stipulation, that the court might legally act upon it, and that no showing was made sufficient to compel the court to set aside this action. The ruling of the district court in that respect must be sustained.In conclusion, we may add, that we do not wish to be understood as holding that a constable has absolute power in a case of this kind as to the control and disposition of the suit. We simply hold that under the circumstances of this case, the trial court did not err in holding the action of the constable binding and conclusive. The decision of these two questions disposes of the case, and compels an affirmance of the judgment. It is true that at subsequent terms certain motions, applications and proceedings were made and had, but we think none of them sufficient to justify any interference in the conclusion we have thus reached. The judgment will-be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, ji:
This was an action of injunction brought by plaintiff in error, plaintiff belo.w, in the district court of Brown county. On the trial of the case, after the plaintiff had finished his evidence, a demurrer thereto was sustained, and judgment entered for the defendant. The facts as stated in the petition are, that defendant was the owner of a tract of eighty acres adjoining the town of Hiawatha. Out of this tract he conveyed three-fourths of an acre to one Oscar Spalsbury, which last-named tract, by sundry conveyances passed to and became the property of plaintiff. It was his homestead. His family consisted of himself, wife, and two boys aged' respectively six and one years. Plaintiff’s dwelling house is located within thirteen feet of the east line of'his lot, and has three windows opening on that side. The town of Hiawatha has been growing rapidly for the last few years, and there is quite a demand for town lots. The eighty-acre tract, which as alleged was once wholly owned by defendant, is eligibly situated for the purposes of an addition to the town of Hiawatha, and defendant was anxious to lay off the entire eighty acres as such an addition. He offered plaintiff $1,600 for his property, which was refused, the same being reasonably worth $1,900 or $2,000, Thereupon defendant conceived the oppressive and unlawful idea of rendering plaintiff’s home obnoxious and unendurable to himself and family, by erecting cheap tenement houses on either side of plaintiff’s land, and filling them with worthless negroes that they might annoy plaintiff’s wife, who is a person in delicate health, and thereby punish plaintiff for refusing defendant’s inadequate offer for the property. In pursuance of this purpose, defendant started to build one of these tenement houses directly on .the line of plaintiff’s land, and thus distant only thirteen feet from plaintiff’s house. Upon these facts the petition prays for an injunction restraining the defendant from erecting such buildings. Defendant answered this petition by general and special denials. The case was called for trial, and from the .plaintiff’s testimony the ownership of the land appeared as alleged; also, the occupation of plaintiff’s land by himself as a homestead, the efforts of defendant to purchase plaintiff’s property, defendant’s expressed intention of erecting small houses close to plaintiff’s land and renting them to negroes to annoy plaintiff’s family, and enforce him to accept the offer, and also defendant’s statement that he would make plaintiff sorry for refusing the offer, and that when he had forced plaintiff out of his homestead, he would move áway the buildings. In pursuance of this intention, he erected a small building about twenty feet by twelve feet, placing it within four feet of plaintiff’s land. It was without cellar or foundation walls, and so constructed that it»could be removed without injury. It was a house of two rooms, was painted, and of itself looked neat, and would rent for some five or six dollars a month. When completed, it was rented to a colored preacher, who occupied it with his family, consisting of himself, wife, and one child. This family behaved well. Such was the substance of the testimony. Plaintiff’s complaint was, that defendant built this house close to his home and put this family into it for the purpose of annoying plaintiff, and not for the purpose of improving his own property. We have.stated the allegations of the petition and the substance of plaintiff’s testimony at length, in order that the full ground of plaintiff’s complaint may be perceived. Stated briefly it is, that defendant, the owner of adjacent lands, provoked at plaintiff because of his refusal to sell at his terms, and for the sake of annoying plaintiff and his family, erected small tenement houses close to plaintiff’s land, and rented them to negroes. Do these facts entitle him to an injunction? Plaintiff invokes the familiar maxim, “Sic utere tuo ut alienum non Icedas,” and insists that under that he is entitled to the injunction prayed for. It will be perceived that plaintiff’s ■complaint is two-fold: first, as to the kind of buildings that ■defendant is erecting; and second, the uses to which he intends putting them. He complains that defendant is erecting small •shanties, and that he proposes filling them with worthless negroes. His testimony fails to fully sustain his allegations. It is true the building defendant has erected is a small tenement house of but two rooms, without cellar or foundation walls, and yet the plaintiff himself says the building looks neat. The building is rented to a negro family, but that family is ■the family of a preacher, and well behaved. It cannot therefore be said that defendant is filling his buildings with worthless negroes. Now does the fact that defendant is improving his property with small tenement houses — houses which do not compare favorably with plaintiff’s homestead —■ and that he is renting those houses to negro families, give plaintiff a right tp interfere by an injunction simply on the ground that defendant is so acting for the purpose of annoying plaintiff? We think not. Doubtless a party may obtain an injunction to restrain a neighbor from erecting or continuing on his premises a nuisance, but that' as a general rule is the limit of interference. A man has a right to improve his own property in any way he sees fit, providing the improvement is not such á one as the law w,ill pronounce a nuisance, ‘and this he may do although he make such improvement through spite. And it may be laid down as a universal rule, that the size and quality of the improvement never of themselves constitute it a nuisance. A land-owner may erect' upon his land the smallest or most temporary kind of’ dwelling-house or store in close proximity to the finest mansion or block of buildings, and that for the mere sake of spiting the owner of such mansion or block of buildings by -the contrast, without becoming subject to restraint at the hands of the courts. In other words, if the improvement itself is legitimate and lawful, is not, per ser a nuisance, the law will not inquire into the motives with which he acts. It is true the law will interfere to prevent the erection of a nuisance such as a stable, out-building, etc., but not to prevent the erection of a store, tenement, or anything of that nature. Even where the building may or not become a nuisance, according to the manner in which if is used, the erection of the building will not-be restrained. High, in his work on Injunctions, §488, says:
“Where the injury complained of is not, per se, a nuisance, but may or may not become so, according to circumstances, and where it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere. Thus, the erection of a wharf, a railroad bridge, a planing mill, a livery stable, or a turpentine distillery, will not be enjoined where thei injury is only a possible and contingent one.”
And/in support thereof cites several authorities. Again, in §496, the author states:
“It is no ground for interference that the erection of the alleged nuisance would prevent the use of surrounding property for such buildings as, in the ordinary course of affairs and the extension of a city, would be erected, nor that it would increase the rate of insurance on surrounding buildings.”
Of course, these tenement houses, though small, would when rented bring income to the defendant, and although he might have means to erect larger buildings and thus obtain a higher income, the size of the buildings is a matter for his judgment alone to determine. Again, even after buildings-which are in themselves perfectly legitimate and proper are erected, they may be put to uses which are illegitimate and improper, which will constitute them nuisances and justify the interference of a court of equity. Thus, if dwelling-houses are used as houses of ill-fame, a court of equity will restrain such use. But the interference will be only to enjoin the use and not to destroy the buildings. But equity will not interfere simply because the occupants of such house are by reason of race,- color, or habits,' disagreeable or offensive. A negro family is not, per se, a nuisance,' and a white man cannot prevent his neighbor from renting his home to a negro family any more than he can to a German, an Irish, or a French family. The law makes no distinction on account of race or color, and recognizes no prejudices arising therefrom. As long as that neighbor’s family is well-behaved, it matters not what the color, race, or habits may be, or how offensive personally or socially it may be to plaintiff; plaintiff has no cause of complaint in the courts. We think, therefore, that neither the size nor character of the building erected, nor the use to which it is put, justified any interference on the part of the courts. The defendant used this property for his own benefit in a legitimate way, created no nuisance, and, though he may have acted with the utmost spite against the plaintiff, yet so long as he keeps within the limits of legal action, the courts will not interfere. We have examined the various cases cited by plaintiff, and see none directly in point, or that will'sustain his cause of action. The case of Harbison v. White, 46 Conn. 106, was decided under a local statute attempting certain police regulations. But even that does not conflict with this decision. The other cases are cases in which the acts enjoined were -of themselves nuisances.- We find no case in which a party seeking to place an improvement upon his own land, an improvement which will increase his income, which improvement is not a nuisance, which does not endanger the physical health or comfort of his neighbor, is restrained from such improvement on the ground that it is annoying and disagreeable to such neighbor, that it does not correspond in character-and kind with the improvements on such neighbor’s premises, that it would bring a different class of people socially into immediate proximity to his neighbor, and that all this was done and intended through spite against such neighbor. We think, therefore, the judgment of the district court was right, and it must be affirmed; and it is so ordered.
All the Justices concurring. | [
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Per Curiam:
The defendants, Plebrank and Truman, were prosecuted, tried and convicted for a violation of the prohibitory act of 1881, and were sentenced accordingly. At the trial each defendant claimed the right, under §198 of the criminal code, to four peremptory challenges; but the court below ruled otherwise, and held that both defendants together were entitled to only four peremptory challenges. The defendants now appeal to this court, and assign such ruling as error.
We think the court below'erred, and the judgment of the court below will therefore be reversed, upon the authority of the case of The State v. Durein, just decided. | [
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The opinion of the court was delivered by
Horton, C. J.:
After the decision of this court had been rendered in Kothman v. Skaggs, et al., ante, pp. 5, et seg., and on December 16, 1882, Kothman by his attorney presented to the court below the mandate of this court reversing the judgment of that court, and directing judgment to be rendered in favor of Kothman as prayed for in his answer. Thereupon the district court entered a personal judgment for Kothman against Herman Markson, as administrator of the estate of J. J. Myers, deceased, for the full amount of the judgment rendered in favor of Kothman against Myers, on May 29, 1874, with interest and costs, and directed that the real estate upon which the judgment was a lien should be sold, and the proceeds distributed by the officer making the sale, to pay— first, the costs in the proceedings in Skaggs v. Myers, et al., as hereafter to be faxed; second, the taxes on the premises; third, the judgment of Kothman. It was also ordered that the remainder of the proceeds, if any, be brought into court for further disposition. Markson excepted, and brings the case here for review.
Upon the presentation of the mandate of this court to the court below, Markson presented his motion to so change and amend the journal entry in the original case of E. H. Skaggs v. J. J. Myers, Herman Markson, as administrator of the estate of J. J. Myers, deceased, F. Kothman, et al., as to show the judgment in favor of F. Rothman against J. J. Myers had been fully paid off, settled, and discharged. In support of this motion he presented an affidavit of T. A. Hurd that he was the attorney of E. H. Skaggs in the action of Skaggs v. Myers, et al.; that Myers, about January 5, 1874, told him the claim of Rothman was in process of settlement, and would be settled on his return to Texas; that some time after this suit was commenced the widow of Myers told him Rothman’s claim had been settled by her husband, as the latter had informed her; also that he had an indistinct recollection he had been informed in some other way that Myers had settled the claim of Rothman in his lifetime; then his own affidavit that the widow of J. J. Myers, deceased, told him in Leavenworth city, in this state, since the suit of Skaggs against Myers was commenced, that the debt of Rothman against Myers had been fully paid off and discharged, and that her husband so told her on his death-bed. The court overruled the motion.
The complaint against this ruling is not well founded. J. J. Myers died about six months after the.judgment of Roth-man was rendered against him. The action of E. H. Skaggs against Myers, Markson, Rothman, et al., was commenced about August 19, 1875, a little over eight months after the’ death of J. J. Myers. The answer of Rothman by way of cross-petition and counterclaim was filed November 8, 1875, and the amended answer of Markson was not filed until May' 29, 1877. From these dates and facts, it is clearly apparent' that the judgment of Rothman against J. J. Myers had not been paid or settled since the trial of the action of Skaggs v.' Myers, Markson, Rothman, et al., which was concluded April 30, 1881. Therefore Markson was not asking by his motion and affidavits the privilege to show any matter of discharge or settlement which had transpired since the rendition of the judgment, that made it inequitable and unjust it should be enforced., The affidavits in support of the' motion were vague - and unsatisfactory, based wholly upon hearsay, and omitted ■ to establish any excuse on the part of Markson for not set-' ting forth, by answer or otherwise’ the alleged payment and settlement of the Kothman claim and judgment prior to the-trial in Skaggs v. Myers, Markson, Kothman, et al., at the December term of the court for 1880. (See McMillan v. Baker, 20 Kas. 50.)
It is also urged that the court erred in rendering a judgment against Markson, as administrator of the estate of J. J. Myers, deceased, for any sum whatever. The prayer of the-answer filed by Kothman in Skaggs v. Myers, et al., was to-the effect that he be adjudged to have a first and prior lien upon the premises mentioned in the petition for the amount of his judgment, interest, and costs; that Skaggs’s pretended claim and mortgage be declared fraudulent and void; that the amount of Kothman’s judgment be first paid from the-proceeds of the sale of the lands; and for all other, further and proper relief in the premises.
We decided in Kothman v. Myers, supra, that the judgment of Kothman was one that might at any time within one year from J. J. Myers’s death, or from the appointment, of his administrator, be revived against the representatives and successors of the deceased, and this without their consent;. and when so revived it would be revived with all its attributes, with all its force and efficacy, and with everything which it possessed on the day prior to'the decease of the judgment debtor; and such judgment, while so subsisting and within one year after the judgment debtor’s decease, might also, without any formal revivor, be used as the foundation for an action against the representatives or the successors of the deceased,, or it might be used as the foundation for affirmative relief in any proper action in which Kothman might be a defendant; and if used as the foundation for an action, or as the foundation for affirmative relief, before being barred or impaired by any statute of limitation, there would be no necessity for any formal revivor under the civil code, for such use would answer substantially the same purpose as a formal revivor; and no-statute of limitation would run against the judgment or the judgment lien pending the litigation so as to bar or impair either the judgment or the judgment lien in any respect, what ever. This decision fully justified the order of the district court that the judgment of Kothman against J. J. Myers, rendered on the 20th day of May, 1874, with all interest thereon, was a first lien on the real estate described in the petition of Skaggs v. Myers, Markson, Kothman, eí al., and that Kothman was entitled to have and recover of Markson, as the administrator of the estate of J. J. Myers, deceased, the amount of that judgment with interest and costs, provided the pleadings in the case of Skaggs v. Myers, et al., were sufficient whereon to base the judgment so rendered. We think they were sufficiently full to support the judgment. The answer of Kothman set up substantially the facts authorizing a formal revivor of his judgment. (Kothman v. Skaggs, ante, pp. 5-18.)
Another objection made to the order of the district court is, that the officer making the sale has no right to pay the judgment of Kothman. It is urged that while the court may proceed and sell the land on which the judgment against the deceased judgment debtor was a lien, that that is as far as it can go; that the money realized from,the sale of the lands must go into the hands of the administrator; that the creditor must go before the probate court and there get his debt; that before the judgment rendered against the deceased in his lifetime shall be satisfied, all funeral expenses, expenses of the last sickness of the deceased, and the expenses of administration, must be first paid. These matters were argued and presented to us upon a motion for a rehearing in the case of Kothman v. Skaggs, et al., and disposed of adversely thereto. It was long ago decided by this court that it could not have been intended by the legislature to • limit in any respect the jurisdiction of the district court by passing the acts conferring jurisdiction upon probate courts. It was si'mply intended by such acts to confer jurisdiction upon the probate courts, and to leave the other courts to exercise just such jurisdiction and powers as other statutes had given or should give to them. (Shoemaker v. Brown, 10 Kas. 383.)
“A mortgage may be foreclosed in the district court, al though the defendant, or one of the defendants, should be an administrator, and a foreclosure judgment rendered in the district court against the deceased in his lifetime may be revived in the same court after his death, against his administrator and heirs.” (Brenner v. Bigelow, 8 Kas. 497.)
The question concerning the prior satisfaction of the funeral expenses and expenses of the last sickness of the deceased, and the expenses of administration, were not in issue in the case of Skaggs v. Myers, et al., nor were those expenses referred to in the original answer, or in the amended answer of Markson, or in any of the pleadings. They are not properly before us now.
Kothman has attached a cross-petition to the proceedings in error prosecuted in this court by Markson, as the administrator of the estate of J. J. Myers, and complains of the action of the district court because it did not render judgment in his favor against the widow and children of J. J. Myers, deceased; this upon the ground that as certain rents had been collected from the lands owned by J. J. Myers in his lifetime, after his death the heirs were bound to pay the debts of their ancestor to the extent of those rents. It appears, however, from the findings of the trial court, that the only rents received were those collected by Markson. Neither the widow nor the children of J. J. Myers, deceased, have received any of the rents; and the question whether the rents so collected and received by Markson can be applied toward the satisfaction of the judgment of Kothman was not before the district court for adjudication, and is not now before us. We therefore have no opinion at this time to express thereon. “ Sufficient unto the day is the evil thereof.”
In the oral argument it was contended that the district court had charged in the order of distribution all of the costs in the action of Skaggs v. Myers, et al., upon the proceeds arising from the sale of the lands. We do not so interpret the order. In the judgment rendered April 30,1881, in Skaggs v. Myers, et al., it was adjudged that the notes and mortgages set forth in the petition and in the answer of E. M. Skaggs were fraudulent, null and void, and that they were not any lien whatever upon the premises described in the petition and answer. And it was further decreed in that judgment, that the defendants, excepting E. M. Skaggs, recover of and from the plaintiff E. H. Skaggs, and the said defendant E. M. Skaggs, all their costs in their behalf expended, and that execution issue therefor. "This judgment for costs against E. H. Skaggs and E. M. Skaggs has never been reversed or set aside, and these costs are no lien upon the premises decreed to be sold.
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
On the 1st day of August, 1882, the plaintiffs commenced their action against the defendant to recover upon a certain promissory note, executed the 28th day of July, 1882, by the latter to the former, for the sum of $737.37, and bearing interest from date at the rate of ten per cent, per annum. At the commencement of the action, the plaintiffs obtained an attachment against the property of the defendant, and levied thereon. The affidavit for attachment contains three grounds, viz.: -
(1) “ That the defendant is about to convert his property into money for the purpose of placing it beyond the reach of his creditors; (2) that the defendant,has assigned and disposed of his property with the intent to hinder, delay and defraud his creditors; (3) that the defendant fraudulently contracted the debt for which suit is about to be brought.”
On the 12th of August, 1882, the defendant filed his motion asking a dissolution of the attachment, and the discharge of the property taken thereunder, and in such motion denied the truthfulness of the-attachment affidavit. Upon the hearing at the September term of the court for 1882, several affidavits were read and considered; the court sustained the motion, and ordered the attachment discharged and set aside. The order and ruling of the court are complained of.
It is insisted that the affidavits proved that the defendant had disposed of his property to delay, hinder and defraud his creditors, and that the debt sued upon was fraudulently contracted. It appears that on the 15th day of July, 1882, the defendant executed to Edgar Hull a chattel mortgage to secure $535.50; but.this mortgage was executed to secure an actual indebtedness, and at the time of the attachment the sum of $314.39 had been paid thereon. The evidence concerning this mortgage in no way proves or tends to prove that the defendant had any idea or intention at its execution to hinder, delay or defraud his creditors. He had the undoubted right to prefer Hull, and to secure him upon his stock of goods. (Randall v. Shaw, 28 Kas. 419.) And the fact that after the execution of the mortgage he paid thereon $315, or nearly $25 per day, goes very far to show that this mortgage was not given as a blanket to cover up or secrete his property, or to dispose of it to hinder, delay or defraud his creditors. Further than this, it appears from the evidence of one witness that after this mortgage had been given, the employés of defendant were instructed by him to sell only for cash, and keep the proceeds of such sales separate, and that this was done until the attachment was levied. Notwithstanding the conflicting evidence, defendant’s testimony that he applied the proceeds of the sale of his goods toward this mortgage, and that his family and other expenses, from the time of the giving of this mortgage till the attachment, were paid from money collected on outstanding accounts, seems to be borne out by the actual facts.
Concerning the claim that the debt sued upon was fraudulently contracted, it is contended that at the time defendant contracted the debt with plaintiffs he was insolvent,'and that as he concealed such fact from the sellers, it was, considering the' other circumstances in proof, such a measure of bad faith as constituted a fraudulent contracting of the debt within the meaning of the attachment law. The facts do not in any way show that the debt was fraudulently contracted. There is nothing in the evidence that he made his purchases at other than the usual times, and in the regular course of his business. No false or other improper representations were made by him at the time of his purchases to the plaintiffs or other parties in regard to his condition tending to mislead and induce them to give him credit which they would otherwise have withheld. It is true that some of the evidence tends to show that for some time he had been running behind; to use his own words, “going down for several years; ” that'his trade was falling off, and his business drifting rapidly in a bad condition; but there is ño evidence showing intentional conceal ment at the time of his purchases, or any intention at such time to cheat his creditors; nor-can we say there was at that time any actual intention on his part to do any act, the necessary result of which was to cheat and defraud plaintiffs or others. As was said in Nichols v. Pinner, 18 N. Y. 299: “But it is clear that such intention [to cheat and defraud another] is not necessarily inferable from the fact that a man in good credit, going on with his regular business matters as usual, purchases for the purpose of continuing that business, after he is made aware that his property is not sufficient to pay his debts. It is not fraudulent in him to use reasonable efforts- to retrieve his fortune and to extricate himself from his embarrassment. It is not unnatural that he should cling to the hope that better times would come; that to-morrow will be as this day, and much more abundant; and that with this hope, however delusive results may have shown it to be, 'he should have been impelled to buy more goods, contract new debts, and struggle on until he find himself in hopeless bankruptcy. This is an every-day experience, in the commercial world, and it would be hard indeed if the unfortunate victim of hopes that looked to him at the time as reasonable, must, in his misfortunes, be judged by the actual instead of the possible results. The authorities do not sustain any such harsh doctrine, but the reverse.”
Now, to sustain the claim of plaintiffs upon the ground of fraud, the affidavits must have established that defendant made the purchases of plaintiffs with the preconceived design not to pay, or what is the same, that he intended to commit a fraud at the time he made his purchases of the plaintiffs, which were not paid for at the commencement of this action, and that he deliberately proceeded to consummate such fraud. This is not shown. The most that can be alleged, and which was proved upon this point, is that defendant at the time of making his purchases was going down, and had been for years, and that of this fact he failed to advise the vendors at the time.
The order and judgment of the district court must be sustained. , ...
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The opinion of the court was delivered by
Valentine, J.:
On August 17,1875, E. H. Skaggs commenced an action in the district court of Leavenworth county against E. J. Myers, Hettie V. Myers, George Myers, John J. Myers, Abram E. Myers, Robert E. L. Myers, Eva B. Myers, and Herman Markson, administrator of the estate, of J. J. Myers, deceased, and E. • Kothman; and afterward, Ewing M. Skaggs, O. O. Searcy, James F. Ellison and John O. Dewees (partners as Ellison & Dewees), F. W. Murray, Jonathan Nix and Leonidas J. Story (partners as Nix & Story), Mark A. Withers, and Archibald J. Larimore, were made parties defendant. The action was- to recover the sum of $16,000 with interest, alleged to be due on eight promissory notes given by J. J. Myers, in his lifetime, to the plaintiff E. H. Skaggs, and to foreclose a mortgage on certain real estate, given by said Myers and wife to the plaintiff to secure the payment of said promissory notes. The defendants in this case included the widow, the heirs, the administrator, and the creditors of J. J. Myers, deceased, and all other persons claiming to" have any interest' in the subject-matter of the controversy. The several defendants filed answers to the plaintiff’s petition, the most of them setting up new matter by way of cross-petition, and asking affirmative relief. Proper replies were filed to these answers. The case was tried by the court below without a jury, and special findings and conclusions of fact and of law were made by the court. And upon these findings and conclusions, the court below rendered judgment against the affirmative claims of all the parties, and simply rendered a judgment against the two Skaggses for costs. The defendant Kothman duly excepted to all the findings and conelüsions, and also moved for a new trial, which motion was overruled, and now, as plaintiff in error, brings the case to this court and asks for a reversal of the judgment of the court below, so far as it affects his claim.
It appears from the pleadings, the evidence and the findings of the court below, that on January 5, 1874, and prior thereto, F. Kothman owned, a promissory note given by J. J. Myers to Kothman, dated June 4th, 1873, for the sum of $10,301.32, which note was then due. On that day, to wit, January 5, 1874, Kothman commenced an action against J. J. Myers on said promissory note, and attached all the lands which are now in controversy in this action; and on May 29, 1874, obtained a judgment in his favor and against Myers for the sum of $10,751:95, and at the same time, and in connection with such judgment, obtained an order that the attached property-should be sold to satisfy such judgment, with interest and-costs. On October 1, 1874, an execution was issued on this judgment and-the property in controyersy was levied on and offered for sale; but was not sold, for the want of bidders. On December 10,1874, J. J. Myers died; and on May 7, 1875, Herman Markson was duly appointed and qualified as administrator of Myers’s estate. On May 8,1875, and subsequently for three weeks, Markson gave due notice, by publication in a newspaper, of his appointment and qualification as administrator of such estate. On August 17,1875, E. H. Skaggs commenced this preseut action against Kothman and others, as before stated. On November 8, 1875, Kothman answered, setting up, by way of cross-petition and counter-claim, all the facts constituting his claim against the estate of J. J. Myers, deceased; and asking by way of affirmative relief, that his judgment and judgment lien should be enforced as against, the .lands in controversy. On September 27, 1876, another execution was issued, in the case of Kothman v. Myers, and was returned unsatisfied. On March 9, 1881, the trial in this present case was commenced. On March 12, 1881, the judgment in the case of Kothman v. Myers was revived against the widow and the heirs of J. J. Myers, deceased; but it was not revived against Markson, the administrator. On April 9, 1881, the court below made its findings and conclusions of fact and of law in this present case, and on April 30, 1881, rendered judgment upon such findings and conclusions. The judgment was against Kothman’s claim, as before stated. Was this judgment correct, or was it erroneous? In other words, has the defendant Kothman a paramount lien upon the property in controversy, which he can enforce in this present action as against the widow, the heirs, the administrator, and the general creditors of the estate of J. J. Myers, deceased? ' This is the only question in the case.
The court below, in effect if not in words, found that no person had any specific lien upon the property in controversy, and we think that there is no question as to the correctness of this finding, except as to Kothman; and the only question in the case is, whether Kothman had any such specific lien, or not. That Kothman once had a lien on the property, paramount to the claims of all other persons, we think must be admitted; but the question arises, Has he lost .this lien by his own laches, or from any other cause? About January 5, 1874, he obtained an attachment lien upon the property; on May 29, 1874, he obtained a judgment lien thereon; and about October 1, 1874, he obtained an execution lien thereon; and these liens were at the time paramount to any interest or lien of any other person. Now has he, for any reason, lost all these liens? ' The parties adverse to Kothman claim that he has; and this claim, as we understand it, is founded upon the ground that Kothman, by his own laches, in not properly prosecuting his claim, has allowed certain statutes of limitations to intervene, and not only to destroy his lien, but also to bar all his right to any relief as against the estate of J. J. Myers, deceased. The only statutes of limitations which can possibly be urged as barring or impairing Kothman’s right to relief, are the following: Section 468 of the civil code; § 433, in connection with § 439 of the civil code; § 81,.in connection with § 80, of the executors and administrators act; section 106 of the executors and administrators act; and §18 and §445 of the civil code.
Now we do not think that any one of these statutes of limitations has so operated as to bar, or even impair, any right possessed by Kothman; and this for the reason, universally recognized, that statutes of limitations do not run against any claim or demand during any portion of the time while a suit is pending for the enforcement of such claim or demand. The rights of parties, so far as the statutes of limitations are concerned, are always to be determined, not as of the date of the trial of the case, or of the rendering of the judgment in the case, but must be determined as of the date when those rights were first set forth for adjudication in the pleading of the party who’claims to possess such rights.
For the present we shall consider that the plaintiff’s judgment was a valid and subsisting claim against the estate of J. J. Myers, deceased, and also was a valid and subsisting lien upon the property in controversy at the time when the defendant filed his answer in the present case. Also, for the present, we shall consider that Kothman had a right to set forth his claim in such answer, and to prosecute and enforce the same in the present action. We shall have more to say, however, with reference to these matters, hereafter.
Perhaps it ■ is unnecessary to say anything further with reference to any of these statutes of limitations; but still it would be proper to mention some of them more specifically. As to § 468 of the civil code, we think it has no room for operation in this action, for an execution was issued and levied upon the property in controversy, within less than one year after the rendition of the judgment, which wholly prevented said § 468 from so operating as to destroy, or even to impair in any manner or degree, any of the force or efficacy of Kothman’s judgment, or his judgment lien. Neither do we think that § 433 in. connection with § 439, of the civil code, can have the effect to impair any right of Kothman. These sections are the ones which limit the time to one year, within which the judgment creditor can revive his judgment, except where the representatives or successors of the deceased consent that the judgment may be revived. (Scroggs v. Tutt, 23 Kas. 182.) Now the only, ground upon which it .can be claimed that these sections necessarily operate to bar the plaintiff’s right to enforce his judgment’and judgment lien in this action, is that the present proceeding cannot take the place of, or be a substitute for, the ordinary proceeding to revive a judgment under article 19 of the civil code, which article includes said §§ 433 and 439. We do not think that this ground is tenable. The proceeding in the present case is much more formal than the ordinary proceeding to revive a judgment, and whenever any difficult question arises as to whether the judgment, or any portion thereof, should be revived or not, justice would be much more likely to be done in a proceeding like the present than under the ordinary revivor proceeding; and there is no substantial right or privilege which the representative or the survivor of the deceased person might avail himself of under the ordinary revivor proceeding, which he could not also avail himself of and insist upon in the present proceeding. The present proceeding, as instituted by Kothman’s answer, is substantially a proceeding^ equity to revive a judgment against the administrator, the widow, the heirs, the creditors, and every other person interested in the estate of J. J. Myers, deceased, to the extent that Kothman may enforce such judgment against the property on which the judgment was a lien, by selling the property and using the proceeds of the sale for the satisfaction of the judgment, etc., in the same manner and to the same extent as the same might have been done on the day preceding Myers’s death. If there is any reason why this judgment, should not be revived and enforced by a sale of the property in Controversy, etc., any person having any adverse interest to Kothman may show it in the present proceeding as fully and completely as he could in the .ordinary revivor proceeding. We think the present proceeding may be maintained, and that it is not barred in any respect by said §§ 433 and 439 of the' civil code. It fully and completely answers every purpose for .which an ordinary revivor proceeding might be instituted. Neither do we think that any right of Kothman’s has been impaired by reason of the provisions of §81, in connection with §80, of the executors and administrators act. Any demand against an estate is legally and properly exhibited against the estate by the commencement of an action against the administrator to enforce such demand. (Sec. 83 of the Executors and Administrators Act.) And the filing of an answer, setting up new matter, by way of cross-petition, and asking for affirmative relief, is the same as the commencement of an action for such affirmative relief. (Sec. 94 of the Civil Code; Kimball v. Connor, 3 Kas. 415.)
We do not think that it is necessary to say anything with reference to §106 of the executors and administrators act, or with reference-to §18 of the civil code. These sections clearly do not bar or impair any right of Kothman’s. Sec. 445 of the civil code provides that a judgment shall bebome dormant in five years after the last execution has been issued. Now we do not think that this section can have the force or effect to bar any right of Kothman’s, for the reason that Kothman’s answer was filed in much less time than five years after the last valid execution was issued in the case. (Dempsey v. Bush, 18 Ohio St. 376.) The issuing of an execution in a case is simply an attempt to enforce the judgment, and such is precisely the object of the present proceeding; and under the circumstances of this case the present proceeding is a much more efficient remedy 'than the issuing of an execution. Indeed, as appears from the facts of this case, the issuing of an execution was not a sufficient remedy at all, for while so many conflicting claims existed against the property, no person would bid upon the property, and therefore the property could not be sold at sheriff’s sale. When all these conflicting claims are settled, as they must be in this case, and the property is then offered for sale, it can undoubtedly be sold, and be sold for a fair and adequate price.
.Perhaps w.e might here properly close this opinion; but we think it would also be proper to make some further statements with reference to the nature and character of Kothman’s claim against the estate of J. J. Myers, deceased. On December 10, 1874, just prior to Myers’s death, Kothman’s judgment against Myers was a valid and subsisting judgment, and was a valid and subsisting lien upon the property in controversy. On that day Myers died. The judgment then ceased to be a judgment against any living person, but it did not become a nullity: it was still a judgment in a limited sense. It was a judgment in ábeyance, a dormant judgment, and one that might at any time within one year from Myers’s death, or from the appointment of his administrator, be revived against the representatives or successor of the deceased; and this without their consent. And it might also be so revived at any subsequent time, with the consent of such representatives and successor; and when it should be revived, it would be revived with all its attributes, with all its force and efficacy, and indeed with everything which it possessed on the day prior to the decease of the judgment debtor. (Halsey v. VanVliet, 27 Kas. 476, 479.) The judgment might also, without any final revivor, be used as the foundation of an action against the representatives or the successor of the deceased. (Scroggs v. Tutt, 23 Kas. 181, 189, 190; Case v. Huey, 26 Kas. 558.) And if it could, be used as a cause of action when the owner of the same is the plaintiff, it might also be used in any proper ease as a cause of action, by setting it forth in the answer when the owner thereof is the defendant. (Civil Code, §94.) It might also be exhibited to the administrator and established in the ordinary way in the probate court, the same as any other demand against the estate; or it might be enforced by an ordinary action in any court of competent jurisdiction, the same as any other demand could be. In the present case, the judgment was not revived against the administrator in any manner, nor was it established in the probate court, nor was it attempted to be revived or established or enforced against the administrator within one year after his appointment and qualification in any manner other than by setting it up in the present ease in Kothman’s answer; in which case, as we have before stated, the administrator and all other persons interested in the estate or in the subject-matter of the action,.were made parties. And no person except Kothman has at any time consented that Kothman’s judgment or claim should be revived or established or enforced in any manner or in any court. Under these circumstances, may Kothman’s judgment be established or enforced in this present action? We know of no sufficient reason why it may not be so established and enforced. It must be remembered that when Kothman filed his answer, his judgment was valid and subsisting, and had lost nothing of its original force or efficacy, except what it had lost by reason of the death of J. J. Myers. Kothman still had the power to revive his judgment against the administrator and heirs, and, indeed, against every representative or successor of the deceased. No statute of limitations of any kind had then run against it to bar it or to impair its force or efficacy in the slightest respect. It was as good and valid then as it ever was, except only what it had lost by reason of the death of Myers. Kothman undoubtedly had the right to set up his judgment in his answer in the present case, and to ask for the affirmative relief for which he did ask; for such has been the well-recognized practice in this state in similar cases ever since’ the state has had any existence. And as no statute of limitations had so operated as to impair any right of Kothman when he filed his answer in the present case, and as no statute of limitations can run against a claim while such claim is in litigation, we think it necessarily follows that no statute of limitations has as yet run against the plaintiff’s claim so as to bar or impair any of its force or efficacy, but his claim is yet as good and as valid as it was on the day of the death of J. J. Myers.
With these views, it follows that the judgment of the court below must be reversed. The judgment will therefore be reversed, and the cause remanded with the order that judgment be rendered in favor of Kothman as prayed for in his answer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harman, C.:
Roy T. Greer was convicted by a jury of the offense of robbery in the first degree for which he was sentenced November 16, 1964, under the habitual criminal act. This is a direct appeal from that sentence, as authorized when the case was previously here in an abortive postconviction proceeding (Greer v. State, 199 Kan. 354, 429 P. 2d 942).
Appellant and a woman, Bobbie Espinosa, were charged jointly with the offense. Appellant was tried separately. According to the state’s evidence the robbery victim drank beer at a club in Wichita during the early morning hours of July 19, 1964. There he met Bobbie and for an agreed fee arranged to have intercourse with her. He and Bobbie left the club in his truck to go to the country to consummate the bargain. Enroute, the appellant, driving an automobile, forced the victim’s truck to the side of the road, beat him up and took his money.
On July 21 appellant and Bobbie were arrested in connection with the offense. Each was separately questioned by investigating officers. Appellant declined to make any statement. Bobbie admitted complicity in the robbery, her oral statement being recorded by tape recording. Later the officers talked with appellant again and had him listen to Bobbie’s tape-recorded admission. Appellant acknowledged the truth of Bobbie’s statement and then admitted his participation in the robbery. His confession was likewise tape-recorded.
At trial the prosecution offered both tape recordings as part of its case in chief and both were received in evidence and reproduced for the jury’s hearing. Appellant made no objection to the receipt of his own tape recording and upon appeal he raises no question as to its admissibility. He did object to receipt of Bobbie’s tape-recorded statement and this forms the basis for his principal complaints here. Appellant first contends he was thereby deprived of his constitutional right of confrontation with the witnesses against him (Kansas bill of rights, § 10; United States constitution, amendment 6).
Neither of the tape recordings is transcribed in the record. Upon oral argument counsel for both sides stated they had sought to obtain these tapes but were unable to locate them. However, counsel concede both tapes implicated appellant in the robbery.
Generally, an accomplice’s extrajudicial confession inculpating the accused is inadmissible against the accused. This rule has usually been expressed in terms of the traditional hearsay rule excluding such testimony (see anno. 4 A. L. R. 3d 678, et seq.) rather than in terms of the constitutional confrontation clause guaranteeing the right to meet the witness face to face, although, of course, the constitutional right would appertain and has been recently applied in varying circumstances (see, for example, Pointer v. Texas, 380 U. S. 400, 13 L. ed. 2d 923, 85 S. Ct. 1065; Douglas v. Alabama, 380 U. S. 415, 13 L. ed. 2d 934, 85 S. Ct. 1074; Bruton v. United States, 391 U. S. 123, 20 L. ed. 2d 476, 88 S. Ct. 1620).
But there is a well recognized exception to the general rule banning the extrajudicial statement of a third person. Such statement is admissible against an accused who has admitted its truth (22A C. J. S., Criminal Law, §769). This rule is now codified in K. S. A. 60-460 as an exception to the hearsay rule as follows:
“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:
“(h) As against a party, a statement . . . (2) of which the party with knowledge of the content thereof has, by words or other conduct, manifested his adoption or his belief in its truth. . . .”
Simply put, this means an incriminating statement of a third person which an accused has admitted to be true- is admissible in evidence against the accused as his own statement by adoption.
Standing by itself Bobbie’s statement would have been inadmissible, but prior to offering it into evidence the prosecution laid a proper foundation for it. This consisted of the testimony of the investigating officer, the clear import of which was that the officer played Bobbie’s confession to appellant, appellant admitted orally her version was correct except as to the weapon; that appellant stated he “had not used a weapon to strike him with. That he had only used his fist to strike the man with when he obtained his money”; then, according to the officer’s testimony, appellant gave a tape-recorded statement admitting his part in the robbery. Appellant heard Bobbie’s statement and, with an exception not here material, he verbally assented to and adopted it; the statement became his own and was thus admissible in evidence against him.
The right of confrontation is a trial right consisting essentially of the right of cross-examination of adverse witnesses and of having them appear and be judged upon their demeanor (5 Wigmore on Evidence, § 1395 [3d. ed., 1940]), but no issue arises under the confrontation clause where it is the accused’s adoptive statement which is being used against him rather than a statement dependent upon the credit of some third party not in court. Here the reliability of the statement does not depend upon Bobbie’s veracity or credibility or her appearance and demeanor as a witness in court and it was not received upon that basis. Appellant was not deprived of any advantage by Bobbie’s absence at trial and his contention of constitutional infringement cannot be sustained.
Appellant further complains the trial court failed to instruct the jury properly as to its duty to consider the truth or falsity of the tape-recorded statements. More specifically he says the trial court failed to tell the jury how to assess the credibility of Bobbie Espinosa. We have already indicated her confession was receivable not upon her credit but because it formed a part of appellant’s admission. Hence there was no necessity for an instruction upon her credibility. The trial court did give general instructions as to credibility of witnesses and the jury’s right to weigh evidence. At trial no objection was made to the instructions given nor was any request made for further or more complete instructions. In fact the subject was not brought up in any way at trial level. Technical objections to tire trial court’s instructions raised for the first time upon appeal will not be considered (State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383).
Appellant’s final specification of error is there was insufficient competent evidence to convict him. He offers no argument to support this as indeed none could be offered upon the record. The robbery victim testified as to the attack and identified appellant as the robber. More need not be said.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the district court of Saline County involving application of the Firemens Relief Fund Act (K. S. A. 40-1701, et seq.) and procedures relative thereto.
Basically the questions presented are interwoven with the construction of K. S. A. 40-1707 and K. S. A. 60-2101 (a), the appeal statute under the new code of civil procedure.
The fumbling of this case from its inception through the Firemen’s Relief Association of Salina and in the courts of this state warrants a rather extensive consideration of the facts in an effort to give some authoritative guidance in the application of the act establishing the Firemen’s Relief Fund. (K. S. A. 40-1701 to 40-1707, incl.)
Peter J. Lauber was employed by the Fire Department of the city of Salina, Kansas, from January 19, 1957, to July 15, 1963. Lauber alleged in his claim for relief that he was injured on the 11th day of December, 1961, while discharging his duties as a member of the Salina Fire Department. At that time the firemen were fighting a fire at the “Barn” in the 200 block south between 7th and 8th Streets in the city of Salina, Kansas. Lauber suffered injury and physical disability to his back and spine when he fell from a ladder while holding the nozzle of a fire hose by reason of a blast of smoke and heat which hit him while so performing his duties as a fireman. At the time Lauber was thirty-three years of age.
On the 12th day of December, 1961, Lauber notified the Firemen’s Relief Association of his injury by informing his captain and lieutenant.
After the accident Lauber had extensive pain in his back, but continued to perform his usual duties for the Salina Fire Department. On August 30, 1962, Lauber gave notice to the Firemens Relief Association of Salina that he would undergo a spinal fusion on September 13, 1962, by informing the president of the Association. The spinal fusion was performed by Dr. Roy B. Coffey of Salina as scheduled, and as a result Lauber was totally disabled from September 13, 1962, to March 22, 1963. When he first returned to work Lauber was unable to perform full duties as a fireman.
Lauber was paid full salary as a member of the Fire Department of the city of Salina from December 11, 1961, to July 15, 1963, except for the months of January, February, March and a part of April, 1963. The salary for the unpaid balance was $1,120. No relief was provided for him during this period.
After Lauber’s injury and prior to August, 1962, in addition to his work as a fireman, he worked for Mr. McCabe fixing fence and for Beverly on a swimming pool. Subsequent to July 15, 1963, Lauber was employed by Richardson Storage and Transfer as a driver, by Nelson Truck Lines as a driver, and by Saline Concrete as a driver. His employment was substantially continuous from July 15, 1963, to August 24, 1965. After August 24, 1965, he has drawn some unemployment.
The Firemen’s Relief Association of Salina (defendant-appelleecross appellant) is a Relief Association incorporated under the laws of Kansas pursuant to K. S. A. 40-1707, and ordinances of the city of Salina of identical wording.
At the time of Lauber’s injuries the Firemen’s Relief Association had approximately $110,000 in its treasury. It carried coverage on the members of the Fire Department of the city of Salina with Blue Cross-Blue Shield and Maryland Casualty Company. Eighty-five percent of the premiums on this insurance was paid by the Firemens Relief Association and fifteen percent by the fireman. The fifteen percent was for coverage of time when the fireman was not on duty.
Lauber made application for the Blue Cross-Blue Shield insurance and knew of its coverage. Blue Cross-Blue Shield paid all of his medical expenses except Asbury Hospital, $15 and Mowery Clinic, $36. The coverage by Maryland Casualty carried on Lauber was an accident and health policy. The trial court found Lauber failed to make claim under the Maryland policy within the time limits and consequently was unable to collect thereunder. The beneficiary under this policy was the Firemens Relief Association, but the Association is required to hold any proceeds paid thereunder in trust for the injured fireman. The Firemens Relief Association failed to make any claim under the Maryland policy by reason of Lauber’s injuries, Chief Travis contending at the hearing before the Firemen s Relief Association that it was Lauber’s duty to make such application.
Lauber in his claim for relief against the Firemens Relief Association sought loss of wages, while totally disabled and still employed as a fireman for and with the Fire Department of the city of Salina, for the months of January, February, March and a part of April, 1963, in the total sum of $1,120.20 together with interest at the rate of six percent from April 15, 1963, to September 3, 1965, in the sum of $160.37 (total $1,280.57). He also claimed relief for fifteen percent permanent partial disability calculated on a life expectancy of 41.25 years from July 15, 1963, in the total sum of $26,581.50 plus interest thereon at the rate of six percent from such date in the sum of $3,406.86. The total loss and relief requested by Lauber as a result of his injuries and resulting physical disability together with interest amounts to $31,268.93.
On the 15th day of April, 1964, Lauber caused to be served on the Firemen’s Relief Association a “Demand for Payment of Loss Due to Injuries and Physical Disability Sustained while Discharging Duties as a Fireman.” After Lauber had waited for more than thirty days and the Firemen’s Relief Association and its officers did not comply with his demand, he filed a petition in mandamus in the district court of Saline County against the Firemen’s Relief Association and its officers to compel them to pay his claim from funds in their possession. This action was dismissed by the district court and on appeal to the Supreme Court was affirmed on the 12th day of June, 1965, in Lauber v. Firemens Relief Assn. of Salina, 195 Kan. 126, 402 P. 2d 817. The court there held the remedy of mandamus could not be used to control discretion or to enforce a right which is in substantial dispute. The record there disclosed Lauber had not requested a hearing, or that a hearing had been denied to him by the Firemen s Relief Association.
On the 6th day of July, 1965, Lauber filed a petition with the Firemen’s Relief Association requesting payment from the Firemen’s Relief Fund of the sum of $30,995.64 plus interest because of injuries and physical disabilities resulting from the accident on December 11, 1961. On the 5th day of August, 1965, the board of directors of the Firemens Relief Association held a hearing on this petition at which Lauber presented his claim. All members of the board of directors were present. The president, J. E. Travis (Fire Chief) opened the hearing and permitted Lauber’s counsel to proceed with a court reporter present. Dr. Coffey, Lauber’s treating physician, was examined concerning his diagnosis of Lauber’s condition, tire operation he performed on Lauber for low back stabilization (spinal fusion), Lauber’s stay in the hospital and treatment. He testified, “that Mr. Lauber now had a 15% disability, at the least 10%.” When Dr. Coffey was asked whether he thought Lauber’s fall caused the injury he stated:
“. . . Mr. Lauber was in a bad mechanical position, that he was born that way and that the normal wear and tear of hard labor had aggravated the situation, however, it was the fall that finally brought him to the Doctor.
A witness named Harry Smith, who had known Lauber for several years, testified that he had never known Lauber to have a bad back until the “Barn” fire. Lauber testified in his own behalf and his wife also testified concerning the trouble Lauber was having with his back after the “Bam” fire.
Lauber said on the 27th day of February, 1963, he wrote a letter to the Chief asking for relief, and the next day the board of directors voted to pay his medical bills.
Among other things Lauber testified “he was let go” (having reference to the 15th day of July, 1963). Immediately upon Lauber having made this statement, Chief Travis countered by saying that was not so, and produced a copy of Lauber’s insurance card that said, “Mr. Lauber resigned July 15, ’63.” Lauber thereupon responded that when he signed the card it did not say anything about resigning. The record then discloses:
“Chief Travis and Mr. Lauber then proceeded with several accusations and counter accusations. . . . Chief Travis said Mr. Lauber received 81 days over payment. Chief Travis said that he did not see Mr. Lauber fall from the ladder, or come down. Jack Gray says he didn’t see him fall and that he was heeling the ladder, and that if Mr. Lauber came down the ladder he would have had to step on him. Chief Travis said that Mr. Lauber was taken off the payroll Jan. 1, 1963.”
It is to be noted Chief Travis was president and Jack Gray was a member of the board of directors of the Firemen’s Relief Association. Both were present at the hearing and participated.
On the 17th day of August, 1965, Lauber’s claim for additional relief for injuries and permanent disabilities was disallowed in its entirety with less than a majority of the directors voting in the negative. Lauber thereupon appealed to the district court of Saline County by filing his notice of appeal on the 2nd day of September, 1965. On the same date Lauber filed an original action against the Firemen’s Relief Association of Salina in the district court upon which summons was issued. (The district court proceeded on Lauber’s appeal, not on this petition.)
On the 1st day of April, 1966, the district court determined that a majority of the members of the board of directors of the Firemen’s Relief Association had not acted in rejecting Lauber’s claim, and thereupon ordered a vote to be taken on the claim and that not less than a majority should vote one way or the other, the court retaining jurisdiction. Thereafter on the 7th day of April, 1966, Lauber’s claim was rejected by a majority of the members of the board of directors of the Firemen’s Relief Association.
The Firemen’s Relief Association defended Lauber’s claim in the district court on the following grounds:
“1. The claim is barred by the Statute of Limitations.
“2. That the payment of the claim versus the defendant is discretionary and did not involve any fraud, malice, or intentional wrongdoing.
“3. That the defendant did provide relief for the plaintiff by virtue of certain insurance policies.
“4. That the plaintiff failed through his own negligence to collect the benefits due under the policies.
“5. That payments under the Firemen’s Relief Fund are for the sole purpose of providing relief and not for paying benefits for permanent disability.”
The contention that the claim was barred by the statute of limitations was raised by a motion to dismiss in the trial court. It was argued since the action was filed September 3, 1965, more than three years after December 11, 1961, the action was barred by the statute of limitations. (K. S. A. 60-512.) Lauber argued the action was filed May 25, 1964, within the three-year period, but that such suit was one in which he failed to recover “otherwise than upon the merits” by reason of the decision of the Supreme Court in the mandamus action, and that the present action, both on appeal and by suit, was commenced within six months thereafter, all as provided in K. S. A. 60-518. In due course the trial court denied the motion to dismiss, and the question is not raised on appeal.
Upon the challenge of the Firemen’s Relief Association in the district court that an appeal would not lie from its decision, the district court ruled as a preliminary matter:
“There is more than abundance of authority for the conclusion that an appeal will not lie from a decision such as the one here made by the Firemen’s Relief Association. This was all before the adoption of the present code of civil procedure effective January 1, 1964. K. S. A. 60-2101, has changed this matter and now provides for such appeal, and the appeal by Lauber is sustained. No procedure is provided by statute in this respect as to further action, and the Court is of the opinion the plaintiff appellant is entitled to relief only upon showing that the Firemen’s Relief Association has acted arbitrarily, capriciously, unreasonably, or oppressively.”
It thereupon ordered that a trial be had on the issue as to whether or not the Firemen’s Relief Association acted arbitrarily, capriciously, unreasonably or oppressively in denying Lauber’s claim.
After hearing the matter the trial court entered an order dated September 6, 1966, in which it found substantially in accordance with the facts heretofore recited, and in its “Findings and Order of the Court” further recited:
“As a result of the injuries suffered by Lauber on December 11, 1961, he was required to have a spinal fusion, which operation was performed by Dr. Coffey in September, 1962. All expenses of this operation and treatment were paid by Blue Cross-Blue Shield.
“Dr. Coffey testified that Lauber had a 15% disability but on cross examination stated it could be a 10%. This disability was not related by the doctor to any particular occupation and in view of the fact that Lauber was substantially employed after July 15, 1963, the refusal of relief thereafter cannot be said to be arbitrary, unreasonable, or capricious.
“The court finds that Lauber was permitted to introduce all testimony he desired. The board of the defendant conducted a full and complete hearing on all of the issues in the case. Full consideration was given to his claims. There was a valid controversy and one upon which reasonable minds might differ. The court in its equitable power finds that the failure to provide relief during the months of January, February, March, and April of 1963 was arbitrary and that the plaintiff should be paid from the relief fund the sum of $1,140.00 plus interest at 6% from April 1963. The court finds all other orders and proceedings of tire Board were not unreasonable, not arbitrary, not capricious, and not oppressive, and all other claims other than the one for $1,140.00 plus interest should be denied, and it is by the court so ordered."
Lauber filed a motion for new trial which was overruled on the 3rd day of October, 1966.
Notice of appeal was duly perfected to the Supreme Court by Lauber from the order of the trial court denying him permanent partial disability. This is based upon Lauber’s assertion that he sustained fifteen percent permanent partial disability as a result of the accident.
The Firemen’s Relief Association cross-appealed from the order of the trial court awarding Lauber a judgment in the sum of $1,140 plus interest for the failure of the Association to provide relief during the months of January, February, March and a part of April, 1963.
Lauber, in an effort to recover fully upon his claim against the Association, contends his case should be tried in the district court in the same manner as any civil suit originally commenced therein. In his brief he relies on K. S. A. 60-2101 (a), which provides:
“A judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. If no other means for perfecting such an appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that he is appealing from such judgment or order with such court, tribunal, board, or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such court, tribunal, board or officer to be prepared and filed with the clerk of the district court of the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A deposit as security for costs shall be required by the clerk of the district court as in the filing of an original action. When an action is filed in the district court on appeal or removal from an inferior court the jurisdiction of the district court shall not be limited to only such matters as were within the jurisdiction of the lower court, and tibe district court may by order permit the issues to be enlarged in the same manner and to the same extent as if the action had been originally commenced in the district court.” (Emphasis added.)
By reason of the foregoing appeal statute Lauber argues:
“If there is a more clear or distinct manner of stating that upon any such appeal, and in this appeal, the trial in the district court is de novo — we cannot conceive of such. Manifestly a jury should be had, especially if requested, upon such trial de novo, which was denied to appellant. . . .”
It is apparent 60-2101 (a), supra, recognizes the appellate jurisdiction of district courts over inferior tribunals whether exercising “judicial” or “quasi-judicial” functions, thus expanding the language of the former appeal statute. (See G. S. 1949, 60-3301.)
It was held in City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29, that in the absence of statutory provisions therefor, district courts were without jurisdiction to entertain appeals from nonjudicial acts of administrative officials or boards. The provisions of 60-2101 (a), supra, adopted by the legislature since that case, expand the appellate review to final orders of such agencies if the order is the exercise of quasi-judicial authority. This includes the decisions of administrative agencies, boards or tribunals.
Lauber dwells on the sentence above emphasized in 60-2101 (a) for the proposition that the statute gives him a right to a trial de novo on appeal from an order of an administrative agency or tribunal.
We construe the emphasized sentence upon which Lauber relies to be no more than declaratory of the various situations that arise on appeal to the district court. It makes no endeavor to expand the court’s jurisdiction or authority.
The last sentence in 60-2101 (a) directs attention to the extent of the court’s jurisdiction. It says, “the district court shall not be limited to only such matters as were within the jurisdiction of the lower court.” (Emphasis added.) Here reference to the jurisdiction of the district court is confined to matters arising from the lower courts as distinguished from tribunals, boards or officers exercising quasi-judicial functions. The language of the section, as set forth in the last sentence, limits the right to enlarge the jurisdiction of the district court, on matters brought before it pursuant to 60-2101 (a), supra, to actions involving claims which could have been “originally commenced in the district court.” The application of this provision for expanded jurisdiction lies only in cases where the district court would have had original jurisdiction in the first instance. Under 60-2101 (a), supra, the district court may by order expand its jurisdiction to matters over which it might have exercised jurisdiction had the action been originally started in the district court. (See Gard, Kansas Code of Civil Procedure Annotated, §60-2101, pp. 761 to 763.)
The provisions of K. S. A. 60-2101 (a) do not authorize the district court to consider an appeal from an administrative agency or tribunal in a trial de novo, nor do they enlarge the jurisdiction of the district court to review administrative matters beyond limitations heretofore imposed by the law of this state.
In Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, the court was confronted with a zoning regulation under K. S. A. 12-712. There the trial court misconceived the basic theory upon which the review of an administrative decision was to be conducted, and this court reversed. The opinion set forth the limitations upon the authority of the district court under the circumstances there presented to review an administrative decision.
The extent of the trial court’s authority on an appeal from an administrative decision was recently before this court in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828. The court there held:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
"In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” (Syl. ¶| 1 and 2.)
In Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239, the court was confronted with the review of action taken by an administrative agency and said:
“It is true the appeal statute here (65-504) provides for trial de novo; however, as in Foote, the statute is to be construed in the light of the constitutional inhibition prescribed by the separation of powers doctrine. This means the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.
“65-504 authorizes the court to act if it finds the board’s order arbitrary, unlawful or unreasonable. The issue, then, before the district court upon appeal is the reasonableness and legality of the order appealed from. . . .” (p. 729.)
The review of an administrative decision by the Firemen’s Pension board of the city of Wichita was before the court in Timmons, Administrator v. McGaughey, 193 Kan. 171, 392 P. 2d 835. The court there said the proceedings before the administrative board were pertinent and material on the question whether the plaintiff’s application for a pension should be granted, and were competent on the question whether the board acted unreasonably, arbitrarily or oppressively under all the facts and circumstances. The court held:
“In reviewing the action of an administrative board, such as a Firemen’s Pension Board of a city of the first class, the judicial function of the district court is to determine whether there was substantial evidence to provide a rational basis for the conclusion reached by the administrative board.
“Courts will not inquire into the motives which impel administrative board action for that does not affect the legality or validity of the action, except where it involves fraud, malice or intentional wrong-doing.” (Syl. f f 1 and 2.)
For other decisions of like import, see Marks v. Frantz, 183 Kan. 47, 325 P. 2d 368; Boehm v. Board of County Commissioners, 194 Kan. 662, 400 P. 2d 739; and Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P. 2d 261.
Lauber contends it was unnecessary for him to first file his claim with the Firemen’s Relief Association because it is a private insurance corporation and subject to civil suit as such. (This he asserts as his primary contention.) He argues it is a private insurance corporation primarily because the statute creating the Firemen’s Relief Fund so provides. He cites K. S. A. 40-1706 which provides that the commissioner of insurance “shall . . . pay over all of the moneys collected from such insurance companies, ... to the treasurer of the firemen’s relief association of such city, . . . to be incorporated under the laws of this state.”
As his sole authority for the proposition that the Firemen’s Relief Association is a private insurance corporation, Lauber cites 18 C. J. S., Corporations, § 18, pp. 394, 398, note 12, relying upon Newcomb v. Boston Protective Department, 151 Mass. 215, 24 N. E. 39 (1890).
The act providing for the creation of the Firemen’s Relief Fund involved in this action is rather sketchy. It has been supplemented by regulations adopted by the commissioner of insurance (Insurance Department Regulations 48-13-1 and 48-13-2) and also by a Firemens Relief Association Handbook issued by the commissioner of insurance. The organization of a Firemens Relief Association to be incorporated pursuant to the provisions of 40-1706, supra, is contained primarily in the handbook, which has not been adopted by the insurance commissioner as regulations. It provides that the Firemen s Relief Association is to be organized without capital stock as a nonprofit corporation to receive, hold, use and disperse, under direction of the Association, the funds due and to become due the Association for the benefit and relief of members of the fire department of the city, district, township, etc., pursuant to the provisions of Article 17, Chapter 40 of the Kansas Statutes Annotated.
Basically the act establishes a Firemen s Relief Fund by imposing a tax of $2 upon each $100 of premiums on all fire and lightning insurance written in Kansas within the limits of any incorporated city, and that portion of any township, county or fire district which is participating in the Firemen’s Relief program. The tax is imposed on all companies writing this insurance.
The fact there may be need for additional regulations and/or legislation regarding the Firemen’s Relief Fund is beside the point in the present litigation. Suffice it to say, we hold the Firemen’s Relief Association of Salina to be a special corporation created by statutory authority for a public purpose. It is a nonprofit, corporate, public body whose duties are defined by statute to administer public funds which it holds in trust.
Undoubtedly, the administrative body which most nearly resembles the board of directors of the Firemen’s Relief Association is the board of trustees of the Firemen’s Pension Fund. (Art. 14a, ch. 13, K. S. A.) This article provides the governing bodies of the cities of the first class maintaining a fire department shall establish and maintain a pension fund for the fire department, which shall be used exclusively for the payment of pensions and disability benefits as authorized therein. The pension fund is administered by a board of trustees, as designated tiherein. The provisions relative to the Firemen’s Pension Fund are quite similar to the provisions of the Firemen’s Relief Act, except the Firemen’s Relief Act does not provide who shall be the governing body of the associations created thereunder.
The statutes in both instances specify the purposes for which the funds may be used. The actual distribution of the funds in both instances is left to the administrative direction of the governing body. We see no sound basis to distinguish between the board of directors of the Firemen s Relief Association and the board of trustees of the Firemen s Pension Fund.
Three cases have been before this court involving the board of trustees of the Firemen’s Pension Fund. (Penquite v. Dunn, 123 Kan. 528, 256 Pac. 130; Denton v. West, 156 Kan. 186, 131 P. 2d 886; and Timmons, Administrator v. McGaughey, 193 Kan. 171, 392 P. 2d 835.) In the Timmons case the board of trustees of the Firemen’s Pension Fund was held to be an administrative body whose decisions are subject to limited review as heretofore stated.
Accordingly, we hold the Firemen’s Relief Association of Salina to be a public body corporate administering public funds pursuant to legislative mandate, and its decisions are administrative in nature. Its decisions are subject to limited review just as the decisions of other administrative tribunals. (See Board of Trustees v. Village of Glen Ellyn, 337 Ill. App. 183, 85 N. E. 2d 473 [1949]; O’Neal v. Trustees, Springfield Firemen’s P. & R. Fund, 10 Ohio Op. 2d 197, 160 N. E. 2d 563 [1959]; Wallace v. Childers, 198 Okla. 604, 180 P. 2d 1005 [1947]; and Firemen’s Pension Fund, etc., v. Minnaugh et al., 80 Pa. D. & C. 297 [1951].)
It follows that the trial court properly recognized Lauber’s appeal from the Firemen’s Relief Association, and reviewed the matter upon the correct legal theory as an appeal from an administrative decision. Lauber’s independent action filed in the district court against the Firemen’s Relief Association of Salina was unnecessary and ineffectual.
We are primarily concerned in this appeal with the provisions of K. S. A. 40-1707, which read in part:
“All moneys collected and received under the provisions of this act, excepting the three percent (3%) thereof as provided in this article, shall be held in trust and used as a fund for the relief of any member of the fire department of such city, township, county or fire district when injured or physically disabled in or by reason of the discharge of his duties as such, ... or for the further purpose of paying a pension to members of full-paid fire departments who are unfit for service after having served for a period of not less than twenty (20) years on the department, such pension not to exceed in amount one-half (3£) of the monthly salary at the date of retirement, or for the purchase of insurance which would provide for any or all of the foregoing purposes for which such fund is authorized to be expended: . . .”
Inasmuch as Lauber had served the Fire Department of Salina for a period of less than ten years, he was not eligible for the payment of a pension under the provisions of the foregoing statute, and we are not here concerned with an attempt by Lauber to receive a pension under the provisions of Article 14a, Chapter 13 of the Kansas Statutes Annotated (in particular see K. S. A. 13-14a02 and 13-14a09).
Thus, we are confined to the first provision authorizing payments for the relief of those injured or physically disabled in or by reason of the discharge of their duties as firemen.
Nowhere has the legislature in making provision for the Firemen’s Relief Fund (K. S. A. 40-1701, et seq.) indicated what should be paid to firemen who are injured or physically disabled in the discharge of their duties as firemen. Where a workman is injured or killed in the course of his employment in industry workmen’s compensation is provided under the workmen’s compensation act. There, however, the compensation to be awarded an injured workman or his dependents is spelled out in some detail. The legislature in dealing with employees’ retirement systems (Art. 14a, ch. 13, K. S. A.) requires the governing body of cities of the first class, maintaining an organized police department and a fire department to establish and maintain a separate pension fund for each department to be used for the payment of pensions and disability benefits as authorized in the act. (See K. S. A. 13-14a02.) Where a fireman qualifies for benefits under this act the legislature has specified what he shall receive from the pension fund. (See K. S. A. 13-14a08 and 12-14a09.)
Here the Firemen’s Relief Association contends the payment of relief to an injured or physically disabled fireman by reason of the discharge of his duties as a fireman is completely discretionary with the Association. Lauber, on the other hand, contends his right to relief is substantially equivalent to one’s right in a tort action to recover damages for the negligent acts of another.
As we construe 40-1707, supra, neither of these extremes was contemplated by the legislature; that is, if it be assumed the expression "completely discretionary” is intended to mean the right to deny any relief whatever.
In construing 40-1707, supra, to determine the meaning of “relief” it is well to take into consideration other benefits made available to firemen by the legislature. The benefits provided in K. S. A. 13-14a09 are concerned with permanent disability benefits. When a fireman in the performance of his duties as a fireman is “permanently injured or disabled” “so as to render him unfit for the performance of his duties” as a fireman, he is eligible for permanent disability benefits under the Firemen’s Pension Fund. The Firemen’s Relief Act (K. S. A. 40-1707) provides that all funds shall be held in trust and used for the relief of firemen injured or physically disabled in the discharge of their duties.
Webster’s Third New International Dictionary defines “relief” as “removal or lightening of something oppressive, burdensome, painful, dangerous, or distressing.”
Courts which have dealt with the definition of “relief” in somewhat the same sense that it has been used in 40-1707, supra, have given the following definitions:
“Relief” means to lessen evil, pain, etc. (D. D. D. Corporation v. Federal Trade Commission, 125 F. 2d 679, 682 [7th Cir. 1942].)
“Relief” is a lessening of a burden, succor, comfort and ease, and complete supplanting is not connoted. (State v. Toomey, 135 Mont. 35, 51, 335 P. 2d 1051 [1958].)
The word “relief” is defined as the act of relieving, or state of being relieved. (Gilbert v. Casualty Co., 126 W. Va. 142, 146, 27 S. E. 2d 431 [1943].)
The word “relief” in United States statutes relating to pensions, bonuses and veterans’ relief means the removal in whole or in part of any evil or hardship that afflicts body or mind; especially, the partial removal of pain, grief, want, care, anxiety, toil, or anything distressing or burdensome, so that some ease is obtained. (In re McCormick’s Estate, 169 Misc. 672, 8 N. Y. S. 2d 179, 183 [1938].)
We construe “relief” as used by the legislature in 40-1707, supra, to mean the removal in whole or in part of the financial burden, hardship or distress of a fireman, his widow or dependents, resulting from injury or physical disability to a fireman in the discharge of his duties. Within reasonable limits, depending on the funds available and the circumstances of financial need resulting from such injury or physical disability to a fireman, the amount of financial assistance to be paid as relief to such fireman, his widow or dependents, falls within the discretionary power of the Firemen’s Relief Association to administer tire fund.
It is to be noted Lauber has appealed to this court on the sole question of the trial court’s refusal to grant him damages for his claimed fifteen percent permanent partial disability sustained as a result of the accident. No appeal was taken from the order granting or denying any other relief.
Under the foregoing construction of 40-1707, supra, it cannot be said the trial court erred in finding the order of the Firemens Relief Association denying Lauber’s claim for fifteen percent permanent partial disability was “not unreasonable, not arbitrary, not capricious, and not oppressive,” or that the trial court erred in finding there was substantial evidence to afford a rational basis for the conclusion reached by the Firemen’s Relief Association in denying Lauber’s claim for fifteen percent permanent partial disability.
The Firemen’s Relief Association’s cross appeal challenged the order of the district court awarding Lauber a judgment in the sum of $1,140 plus interest for the failure of the Association to provide relief to Lauber during the months of January, February, March and a part of April, 1963, on the ground that the Association’s denial of relief to Lauber for these months was arbitrary.
By providing financial assistance to Lauber in the form of relief by paying his medical expenses and salary for the months of September, October, November and December, 1962, the Firemen’s Relief Association admitted Lauber sustained injury in the “Bam” fire in the course of his employment as a fireman with the Salina Fire Department. The fact that there may have been some controversy as to whether Lauber sustained an injury at the “Bam” fire was resolved in Lauber’s favor by the foregoing admission which is binding upon the Association.
Under these circumstances the evidence was sufficient to sustain the finding of the trial court that the refusal of the Firemen’s Relief Association to provide relief to Lauber for the remaining months of his total temporary disability as a result of the spinal fusion — the months of January, February, March and a part of April, 1963— was arbitrary and unreasonable.
The record discloses, and the trial court without doubt noted, an air of hostility on the part of Chief Travis, chairman of the board of directors of the Firemen’s Relief Association hearing Lauber’s claim for relief, and gave due consideration to this circumstance. (See Comm’rs of Leavenworth v. Brewer, 9 Kan. 307.)
It is unfortunate a fireman who presents a claim for relief to an administrative body holding public funds in trust for his benefit should be required to present his claim to a board presided over by one who manifests partiality against the claimant. The influence a city fire chief has over other city firemen serving on an administrative body of this character is a circumstance entitled to note. A situation of this character denigrates the requirement of a fair and impartial hearing by an administrative body committed to administer public trust funds.
Perhaps the remedy lies in legislation providing for the organization of Firemen’s Relief Associations on a more suitable basis for the purpose of administering these public trust funds impartially.
One other point deserves mention. The Firemen’s Relief Association defended in the trial court on the ground that it provided relief for Lauber by virtue of certain insurance policies as authorized by the statute (40-1707, supra), and that Lauber failed, through his own neglect, to collect the benefits due under the Maryland Casualty policy.
It may well be the funds accumulated under the legislative scheme are inadequate to administer the Firemen’s Relief Fund, without the procurement of insurance to adequately provide relief for the firemen intended to benefit by the act, but Firemen’s Relief Associations are governed by regulations adopted by the commissioner of insurance in the purchase of insurance. This matter is spelled out in some detail by Insurance Department Regulations 48-13-1, relative to on-duty coverage, and 48-13-2, relative to twenty-four hour coverage.
Under 40-1707, supra, the Firemen’s Relief Association is obligated to use the money provided by the act for the relief of those injured or physically disabled in or by reason of the discharge of their duties as firemen, or to carry insurance for this purpose. Lauber in his brief claims he had no knowledge of the Maryland Casualty Company insurance written for his benefit until January, 1963, when it was too late to make application for the same.
Under the insurance commissioner’s regulations policies of insurance purchased by the Firemen’s Relief Association must name the Firemen’s Relief Association as the beneficiary of the policy, and must not contain a provision which would permit the beneficiary to be changed. Furthermore, all indemnities of whatsoever nature must be paid to the Firemen’s Relief Association, and the policy of insurance shall so provide.
It is readily apparent these policies of insurance are administered by the Firemen’s Relief Association as trustee for the benefit of the individual firemen.
Lauber’s theory throughout the extended proceedings herein was that he is entitled to be paid the full extent of his claim by virtue of the direction in 40-1707, supra, to the Firemen’s Relief Association that it use the funds held in trust to provide relief for firemen injured or physically disabled in or by reason of the discharge of their duties. Under his theory the fact the Firemen’s Relief Association carried the policy of insurance with Maryland Casualty Company was immaterial because, according to Lauber, its only purpose was to indemnify the Association for the payments of relief it was obligated to make under the statute. Under these circumstances and upon the present state of the record, the failure of the Firemen’s Relief Association to make application for the benefits under the Maryland Casualty policy of insurance for and on behalf of Lauber suggests questions we are obligated to leave open.
The trial court in the instant case entered judgment for Lauber in the sum of $1,140 as wages for the months of January, February, March and a part of April, 1963, plus interest, thereby granting relief to Lauber from funds of the Association which are primarily the obligation of the Association to award. Under the facts and circumstances presented by the record herein, however, the entry of such judgment was not prejudicial to the Association in view of the action previously taken by the Association in awarding Lauber relief by paying his wages for the months of September, October, November and December, 1962.
The Association contends that the judgment entered by the trial court included wages for one extra month for which Lauber was actually on duty and paid. This question relates to the cross appeal of the Association, and inasmuch as the Association has not made it affirmatively appear from the record the trial court erred in this respect, the Association has failed to sustain its burden on this matter.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in favor of the defendant in an action to recover damages for alleged personal injuries and property damage resulting from contact between two automobiles.
The only witnesses were the plaintiff and the defendant, the drivers of the two cars.
The defendant was backing his automobile from his drive on the east side of Shelton Street, Wichita, Kansas. He looked to the south and the north and observed a car approaching some 140 feet to the north. He stopped in his approach between the curb and the side walk. Defendant waited until the car from the north had passed, looked in both directions, saw no vehicles approaching and proceeded to back out into the street at a speed of three to five miles per hour. From the position where defendant had stopped a tree in his neighbor’s yard limited his view to the south to about fifty feet. All of defendant’s car was in the street with the exception of the front wheels which were still in the approach when he made contact with plaintiff’s automobile which he had not seen or heard. His bumper was scratched and a tail light damaged which cost $1.50 to repair. These facts were given by the defendant from his point of view.
The plaintiff gave her version of the incident. She was coming from the south and as she approached defendant’s driveway, she observed him backing out. She slowed down about three or four car lengths back when she saw defendant stop for the car coming from the north. This car passed. Plaintiff testified:
“Q. Then you started on by, is that right?
“A. That’s right.
“Q. This other car had already gone on by?
“A. Yes, sir.
“Q. How far away was the other car when the accident occurred, do you know?
“A. I didn’t look to see.
“Q. Did it stop and come back to the scene?
“A. No, sir, it didn’t.
“Q. Well, was it your opinion that Mr. Dirkson was going to back on out into the street to go somewhere?
“A. It was, but I thought I would get by first.
“Q. All right, and you never looked at him directly to see whether he ever looked over and saw you?
“A. No, I figured after he saw the other car he’s [sic] naturally look my way and see me, too.
“Q. All right. He’d have to turn back around and look for you, wouldn’t he?
“A. Yes.
“Q. All right. And, as I understand it, you didn’t honlc your horn at any time until just at impact or just—
“A. Just a split second or just right at impact.” (Emphasis supplied.)
The bumper of plaintiff’s automobile was bent and the quarter panel bent in. Tire extent of plaintiff’s injury and damages, which were questioned by defendant, are not an issue in this appeal. At the pretrial conference the issues, other than the nature and extent of plaintiff’s injury, were determined to be—
“A. Was the defendant guilty of negligence which was a proximate cause of the accident?
“B. Was the plaintiff guilty of contributory negligence which was a proximate cause of the accident?”
The case was tried to a jury which rendered a general verdict for defendant. No special questions were submitted. The trial court approved the verdict and rendered judgment thereon.
The plaintiff has appealed.
The gravamen of appellant’s contentions is that the appellee was guilty of negligence as a matter of law and there was no substantial evidence to support the claim of contributory negligence. This results in the further contention that the trial court should have so instructed the jury.
The appellant places considerable stress on K. S. A. 8-553 which provides:
“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.”
Assuming arguendo that the appellee did violate this statute, the question of causation would necessarily remain open for determination. This court adheres to the rule that the mere fact that a person violates a traffic regulation does not establish actionable negligence as a matter of law, as the question of proximate cause remains for determination. (In re Estate of Lloyd, 178 Kan. 572, 576, 290 P. 2d 817; Applegate v. Home Oil Co., 182 Kan. 655, 661, 324 P. 2d 203.)
The consideration of a few general principles applicable to appellate review should dispose of this controversy.
A general verdict for a defendant, without special questions, resolves all controverted issues of fact against the plaintiff. So, in this case the general verdict in favor of appellee resolved all questions relating to actionable negligence against the appellant and in favor of the appellee. (West v. Lear, 167 Kan. 222, 205 P. 2d 910; Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049; Howell v. Ablah, 188 Kan. 244, 361 P. 2d 872.)
A general verdict will not be disturbed on appeal if there is any evidence to support it and this court should concern itself only with whether there is any evidence, inferences to be drawn therefrom or rationales which support the verdict. The appellate court on review should not attempt to weigh the evidence. (Stephenson v. Wallis, 181 Kan. 254, 311 P. 2d 355; Canfield v. Oberzan, 196 Kan. 107, 410 P. 2d 339; Horton v. Montgomery Ward, 199 Kan. 245, 249, 428 P. 2d 774.)
This court cannot say as a matter of law that there was no substantial competent evidence or inferences to be drawn therefrom which would justify reasonable minds in finding the appellant guilty of contributory negligence. (Gardner v. Pereboom, 197 Kan. 188, 194, 416 P. 2d 67.) Appellant thought she could get by appellee before he backed out in the street, but she made no effort to warn appellee of her intentions by sounding her horn.
If the appellant was guilty of contributory negligence, the negligence of the appellee, if any, becomes immaterial as not being the sole proximate cause.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Sedgwick County denying the petitioner relief in a proceeding instituted pursuant to K. S. A. 60-1507.
The underlying issue before the trial court attacking the validity of the sentence was whether the petitioner should have been permitted to withdraw his plea of guilty to the criminal charges upon which his conviction and sentence were based.
On the 12th day of April, 1965, the petitioner was represented by retained counsel and pleaded guilty to the offenses of first degree robbery and violation of the check law. He was thereafter sentenced in accordance with the applicable statutes. He took a direct appeal from the judgment of conviction which was affirmed by this court in State v. Angle, 197 Kan. 492, 419 P. 2d 935, where the facts relating to the criminal action are set forth.
Thereafter the petitioner, an indigent, instituted this action pursuant to 60-1507, supra. Counsel was appointed to represent him, and the tidal court gave him an evidentiary hearing at which he was present and testified.
On appeal the points raised by the petitioner correspond with the points set forth in his motion upon which the trial court denied relief. The petitioner contends: (1) That he was not guilty as charged; (2) that he was an incompetent person at the time of the “alleged crimes, arrest, preliminary hearing, arraignment and trial;” (3) that he was “coerced into waiving his constitutional rights, preliminary hearing and into entering his plea of guilty” to the charges; (4) that he was inadequately and ineffectively represented by his attorney because of conflict of interest, fraud and misrepresentation; (5) that he was never at any time informed of the nature of the charges against him; and (6) that he was not given sufficient time to consult his attorney for the 1507 hearing. The last point has been abandoned.
Though specified in more detail, the above points raise substantially the same issue which was before this court on appeal in the criminal action.
At the hearing in the trial court in this 1507 proceeding the petitioner called as his first witness his retained trial counsel who testified in direct opposition to the petitioner’s contentions. The petitioner’s testimony tended to substantiate the allegations in his petition. The petitioner then called Patricia Sandefer, his lady friend, who failed to corroborate any of his allegations. No further evidence was offered by the petitioner, and the state called one witness who corroborated the testimony of the petitioner’s trial counsel. Upon the foregoing conflicting evidence the trial court found the petitioner failed to sustain the burden of proof, specifically setting forth its finding against the petitioner on each of the points enumerated in his motion, and denied the relief sought.
It would serve no purpose to detail the facts presented by the evidence in this case. We have carefully reviewed the record, and the only evidence presented at the hearing tending to substantiate the appellant’s petition was his own testimony, which even his own witnesses refuted. We find no error in the record presented wherein the trial court denied relief. (Goodwin v. State, 195 Kan. 414, 407 P. 2d 528; Huston v. State, 195 Kan. 140, 403 P. 2d 122; and Lieser v. State, 199 Kan. 503, 430 P. 2d 243.)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This action was commenced by the plaintiff, Darlene Cadwallader, to recover an amount alleged to be due from the defendant, Dale H. Lehman, on a judgment for child support obtained by plaintiff in the District Court of Thurston County, Nebraska, on January 10, 1957. Default judgment was entered in this case on July 27, 1967, for the sum of $6,066.65 and interest. A motion by defendant to set the judgment aside was overruled and this appeal followed. The parties will be designated either by name or as plaintiff and defendant, respectively.
In the Nebraska action, plaintiff was awarded the custody of three minor children and the defendant was ordered to pay child support of $100 per month. In the present lawsuit it is plaintiff’s position that her former spouse has defaulted in the payment of child support due under the judgment, and such is the gravamen of the instant cause of action.
Since the rendition of the Nebraska judgment both plaintiff and defendant have assumed new marital relationships. Neither party now lives in the state of Nebraska, the plaintiff presently residing in Alaska, and the defendant in California.
During the calendar year 1965 the defendant inherited from his mother a one-third interest in a 320-acre farm in Clark County, Kansas. On July 25, 1966, the defendant quitclaimed his interest in the farm to his present wife, Ileen, the deed being recorded in Clark County on August 15, 1966. The deed bears no federal revenue stamps and recites a consideration of $1.
On August 19, 1966, four days after the deed to Ileen was recorded, the present action was filed in the Clark County District Court. On the same date a summons was issued, being directed to the sheriff of Clark County. The summons was returned by the sheriff on the same day it was issued, bearing the notation “Not found in Clark County, Kansas.”
Less than a month later, and on September 8, 1966, a summons for personal service outside the state of Kansas was directed to the sheriff of Los Angeles County, California. The officer’s return, which is signed and acknowledged, shows personal service on the defendant in Los Angeles County on October 3, 1966. Nine days later, on October 12th, a letter was dispatched on the defendant’s behalf by a Los Angeles law firm addressed to plaintiff’s lawyers in Dodge City, Kansas. The letter advised Mrs. Cadwallader’s counsel that Mr. Lehman had consulted their office; that he was not a Kansas resident; and suggested that the proceedings be suspended for lack of jurisdiction.
Under date of November 9, 1966, a letter from plaintiff’s counsel was sent by certified mail to the defendant, and Mr. Lehman personally receipted for the same. The letter advised the defendant that the plaintiff’s petition would be presented to the court on December 8, 1966; that plaintiff’s attorneys were in the process of attaching his undivided one-third interest in the Clark County real estate (describing it); and that if defendant did not appear and defend the suit, it was their intention to sell his interest in the land under execution and eventually file a partition action. Lehman was further advised that if the land was transferred, action would be taken to set the deed aside as fraudulent.
Judgment was not taken on December 8th, but an affidavit for attachment was filed on that date and an order of attachment was issued and directed to the Clark County sheriff for service. The sheriffs return showed that service was made on December 8, 1966, by levy upon and attachment of the defendant’s interest in the described Kansas real estate.
A copy of the attachment order, bearing the return made by the sheriff of Clark County, was also thereafter served personally on the defendant in Los Angeles County, California, by the same officer who served the original summons. The verified return shows the date of service as January 18,1967.
Apparently no further action was taken in this lawsuit until July 27, 1967. In the meantime, Ileen and her husband, the defendant, together with owners of the other two-thirds (%) interest in the real estate, contracted to sell the land to a third party for $56,000, and deeds were executed pursuant to their agreement.
When the prospective purchaser had the abstract examined, he learned the real estate had been attached, and this court was advised, at the time of oral argument, that the purchase money is being held in escrow pending final determination of the present proceedings. The defendant now contends this was the first he had known of the attachment; that he had not even known he was being sued in Kansas. This contention however is refuted by the record.
On a date not shown, but presumably after sale was made, the defendant’s brother, Lawrence A. Lehman, individually and as guardian of an incompetent sister, filed a motion for leave to intervene. This motion was heard on July 27, 1967. Lawrence appeared through his counsel, Robert M. Baker, who now represents the defendant, and the defendant made no appearance either in person or by counsel. The court overruled Lawrence’s motion to intervene, but proceeded to approve the service which had been had upon the defendant and awarded judgment against the defendant in the amount asked.
Following entry of judgment, the defendant, for the first time, made an appearance in this lawsuit. On August 10, 1967, he appeared specially and filed a motion to set aside the default judgment of July 27, 1967, on two grounds: First, that he was a California resident and the court had no jurisdiction over him and second, that there was no competent evidence or reason on which a judgment, default or otherwise, could be based. On the same day, August 10,1967, two motions were also filed by the defendant’s wife, Ileen, one to intervene and the other to quash the attachment.
All three motions were heard on September 7, 1967, at which time the court overruled the defendant’s motion to set aside the default judgment, sustained Ileen’s motion to intervene and overruled her motion to quash the attachment. The court also overruled Ileen’s oral motion to require plaintiff to furnish an indemnifying bond. At the same time the court allowed plaintiff’s oral motion for leave to file a creditor’s bill. A creditor’s bill was filed September 12, 1967, but we are advised it has not been heard pending disposition of this appeal.
The present appeal is from the court’s refusal to set aside the default judgment of July 27, 1967; from the order allowing plaintiff to file a creditor’s bill; and from all other adverse rulings and orders.
We shall first turn to the defendant’s claim that the Clark County District Court was without jurisdiction over him and that the judgment ostensibly rendered against him was, therefore, null and void. Here we point out that in oral argument before this court, counsel for plaintiff stated his client was not contending that her judgment was anything more than a judgment in rem. This acknowledgement accords in principle with the statement found in plaintiff’s brief that the Kansas Court at least had authority to render judgment quasi in rem.
In view of the plaintiff’s concession, we need consider this judgment as being only in rem, and shall discuss its validity in that context alone. Hence we are not called upon to decide whether plaintiff’s cause of action comes within the purview of K. S. A. 60-308 (b) (3) as one which arises from the ownership, use or possession of real estate situated in this state. Nor would anything be gained by inquiring whether the service obtained on the defendant would suffice, under the so-called “long-arm” statute, to support a personal judgment.
The validity of the judgment against Lehman, viewed as a judgment in rem, depends on whether service was obtained upon him in substantial compliance with our statutes. Before pondering this issue in depth, we pause to observe we are cognizant of the suggestion which has been made that since the judgment is personal, in form, it cannot be in rem. It is our opinion, however, that the language in which a judgment may be couched is not conclusive as to its classification or type, or as to the effect which must be accorded it. In discussing the question of the jurisdiction which is acquired over nonresidents through substituted or constructive service, the author of the text in 42 Am. Jur., Process, § 77, p. 66, had this to say:
"... a judgment against a nonresident brought into court only by-substituted or constructive service can be effectual only as a judgment in rem, acting on such property as the defendant may have within the jurisdiction. If he has no such property, there is nothing on which the courts can adjudicate. The judgment may be in form a personal one, but it has no effect beyond the property attached in the suit; . . .”
As we have already related, personal service of summons was made upon the defendant in Los Angeles County, California, on October 3, 1966. Under the provisions of K. S. A. 60-308 (a) (1) that service, if validly executed, would be the equivalent, so far as Lehman is concerned, of service upon him by publication. The statute reads:
“Personal service of summons may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within this state; otherwise it shall have the force and effect of service by publication.” (Emphasis supplied.)
Rut it is objected that the officer who served the summons on the defendant did not verify the return. Hence it is argued there was no valid out-of-state service. The applicable statute K. S. A. 60-308 (a) (2) provides:
“The service of summons shall be made in like manner as service within this state, by any officer authorized to make service of summons in the state where defendant is served. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.” (Emphasis supplied.)
Strictly speaking the return lacks verification. The deputy sheriff made out his return properly, and in affidavit form. Moreover, he signed the return at the place indicated, but the Clerk of the Superior Court, for some reason best known to himself, attached an acknowledgment instead of executing a verification. We do not regard this as fatal, however. The district court approved the service, as shown by the journal entry of July 27, 1967. In so doing, the court was authorized, by the statute itself, to consider any competent proof that service had properly been made.
In our opinion it was proper for the trial court, in determining whether the defendant was served with out-of-state summons on October 3, 1966, to take into account the return of service which, although only acknowledged, at least suggests personal service on Lehman, together with the letter of October 12, 1966, from the attorneys consulted by Lehman about the lawsuit. We conclude the court was justified in finding the defendant properly served with oüt-of-state process. The statute equates that service to service by publication.
It is true that no attachment had been levied on Kansas property, either when the out-of-state summons was issued, or when it was served on October 3, 1966. Neither had an affidavit for attachment then been filed, or an order of attachment issued. It was only on December 8, 1966, that an attachment affidavit was filed, an attachment order issued, and a levy made on Lehman’s interest in the Clark County land. This poses the question: Is it necessary, in an action such as this, to levy an attachment on property within the state before constructive service may be obtained?
We are frank to say our limited research has located no Kansas authority squarely in point, and we have received precious little assistance in this regard from counsel. There is case law to the effect that attachment proceedings may not be undertaken prior to the filing of an action to which the attachment is ancillary (Smith v. Payton, 13 Kan. 362; Jones v. Warnick, 49 Kan. 63, 30 Pac. 115), but these cases are not relevant to the situation which confronts us. In the present action the attachment affidavit was filed and the attachment was levied after, not prior to, the commencement of the main action.
There is difference of opinion among the courts of this country over whether a valid attachment must precede or attend constructive service. In 42 Am. Jur., Process, § 74, p. 63, the conflict of authority is stated in this way:
“Prior to the decision of Pennoyer v. Neff, it was the law in many jurisdictions that, if a nonresident defendant had property in the state, its courts had jurisdiction, without seizing it, to proceed by publication of the summons, and render a judgment in personam valid within the state to the extent of any property of the defendant therein. It is now established, however, that the property of a nonresident defendant must be seized before any valid judgment can be rendered. ... It has been held, however, that in the absence of statute it is unnecessary to levy an attachment on the property before publication; it is sufficient if such levy precedes the entry of the judgment. A contrary view is taken by some courts, which hold that proceedings for the service of summons by publication on a nonresident before attachment of his property are null and void.”
To similar effect, the text in 72 C. J. S., Process, § 73b, p. 1108, reads:
“Previous attachment of property in the state is not necessary to authorize service on a nonresident defendant out of the state unless required by statute. . . .”
The difference in viewpoints is emphasized in Skillern v. Ward, 79 Idaho 350, 317 P. 2d 1050, where it is said:
“There is a diversity of authority on the question as to whether or not a valid attachment must precede or accompany the substituted service, or whether the seizure of property of defendant is sufficient if it occurs any time before judgment. (Citingcases.)” (p.355.)
As indicated in 72 C. J. S. supra, some states, such as New York, have enacted statutes requiring that property within the state be attached, or at least brought under court control, prior to obtaining substituted service, where a nonresident’s property is sought to be appropriated to the payment of a claim. (Soemann v. Carr, 188 N. Y. S. 2d 611.) However, Kansas has no such statute. K. S. A. 60-701 simply provides:
“The plaintiffs at or after the commencement of any civil action may, as an incident to the relief sought, have one or more attachments against the property of the defendant, or that of any one or more of several defendants, when the defendant whose property is to be attached, (1) is a nonresident of the state . . .” (Emphasis supplied.)
After assidious study of the relatively few cases we have unearthed on the question, we are inclined to the view that the better and more equitable rule is that which permits attachment proceedings to be commenced after substituted service has been obtained, provided the defendant be given reasonable notice of and opportunity to defend against the attachment proceedings prior to the entry of judgment.
In State ex rel. Bank v. Circuit Court, 32 S. D. 573, 143 N. W. 892, the Supreme Court of South Dakota had this to say in the course of its opinion:
“. . . It is the settled law of this state, in conformity with the decisions in the majority of the states, that it is not necessary for the court to acquire jurisdiction over the property prior to the granting of the order of publication. (Citing cases.) ” (p. 578.)
In an earlier case, Iowa State Savings Bank v. Jacobson, 8 S. D. 292, 66 N. W. 453, the same court said:
. . Upon the theory that property is always in the possession of its owner and the assumption that he will look to any legal proceedings instituted to affect the same, the publication of a summons immediately followed by the seizure of property under an attachment, in time to enable him to appear and defend before judgment, is sufficient to confer jurisdiction upon a court over the attached property of a nonappearing nonresident defendant. For the purposes of an attachment the action is deemed commenced against a nonresident defendant when the summons issues, provided publication thereof is commenced within 30 days; and the writ may then issue, or at any time afterwards, within the rule above announced. . . (p. 298.)
Among other cases supporting the rule, attention is invited to Hartzell v. Vigen, 6 N. D. 117, 69 N. W. 203, 35 L. R. A. 451, 66 Am. St. Rep. 589, where a comprehensive discussion of the subject is found. For cases contra, see Breon v. Lumber Co., 83 S. C. 221, 65 S.E. 214, 24 L.R.A. (N.S.) 276, 137 Am. St. Rep. 803 and Francis v. Allen, 37 Ohio Ops. 362, 79 N. E. 2d 803, although the latter might well be distinguished.
Fitting the facts of this case within the content of the rule we have announced, we find that substituted service was obtained on the defendant forty-five days after the petition was filed — well within the ninety days time specified in K. S. A. 60-203 for the first publication. Judgment was not finally taken until July 27, 1967, some eight months after the defendant was advised by certified mail that his interest in the land was being attached, and six months after a copy of the attachment order, with the return showing service thereof, was personally served on the defendant in California. The defendant thus had time in abundance to appear and protect his interest. His plaintive plea that he knew nothing of the attachment proceedings has a hollow ring when his own brother, a co-owner of the land, had time to file a motion for intervention before judgment was entered, and had presented his motion through counsel on the same date default judgment was taken against the defendant. Moreover, defendant concedes in his brief that he became cognizant of the attachment when the abstract was examined in connection with the sale of the farm.
Considering the out-of-state service had personally upon the defendant, in conjunction with the attachment later levied upon the defendant’s interest in the real estate, of which attachment the defendant long had notice, we are forced to conclude that the trial court was not without jurisdiction to enter default judgment against the defendant in rem. We need not, of course, speculate here as to what the result might have been if the service had been attacked prior to the levy of attachment.
We believe the conclusion we have reached, as expressed in the foregoing paragraph, accords with the spirit and carries out the purpose of that portion of K. S. A. 60-204 which provides:
“. . . In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.”
The next contention advanced by Mr. Lehman is that he owned no interest in the Clark County real estate, having conveyed the same to his wife, Ileen. Thus, according to his argument, there was no property to attach, and nothing against which a judgment in rem could operate. On the surface, this line of reasoning might appear to have some merit.
On the other hand, the plaintiff asserts that the conveyance from Lehman to his wife was without consideration and given in fraud of creditors. To implement this position, Mrs. Cadwallader moved for permission to file a creditor s bill in this proceeding, the purpose of which would be to determine whether the conveyance was valid, or whether it was void as to attaching creditors. This motion was sustained by the court, and a motion in the nature of a creditor’s bill was filed.
To prove her right to bring a creditor’s bill at this juncture, the plaintiff relies on Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634. We think her reliance is well placed, for the Parmenter case bears a marked similarity to the present case. In Parmenter, the plaintiff-creditor attached, as property of the defendant-debtor, real estate which the latter had transferred before the action was commenced. Publication service was then obtained on the defendant, who was a nonresident of and absent from this state. Judgment was later rendered in favor of the plaintiff and the land was ordered sold.
However, the plaintiff did not proceed with sale on execution but instead commenced a separate equitable action to subject the attached land to payment of the judgment. In upholding the plaintiff’s right to maintain such an action, this court said:
“. . . The judgment obtained on service by publication was valid in all respects so far as the property seized was concerned. It was conclusive on all parties and privies to it, and could not be collaterally attacked. (National Bank v. Peters, 51 Kan. 62, 32 Pac. 637; Garrett v. Struble, 57 id. 508, 46 Pac. 943.)
“If the remedy invoiced in this case was denied to the plaintiff below, he could get no relief against the alleged fraudulent conveyance made by his debtor so long as the latter and his grantees avoided personal service of process. The suit had for its purpose the removal of obstacles in the way of the collection of the judgment interposed by the judgment debtor. An equitable interest in land is subject to attachment in this state. (Shanks v. Simon, 57 Kan. 385, 46 Pac. 774, Travis v. Supply Co., 42 id. 625, 22 Pac. 991.) It was to obtain the fruits of the seizure of this equitable interest that the present suit was instituted. We have no doubt of the right of the plaintiff in error to maintain the action. (Gibbons v. Pemberton, 101 Mich. 397, 45 Am. St. Rep. 417; M. & T. Bank of Jersey City v. Dakin et al., 51 N. Y. 519.)” (p. 64.)
We believe the Parmenter case, which has not been overruled or modified, is conclusive as to plaintiff’s right to bring an action or file a motion in the nature of a creditor’s bill. If such a right were to be denied, a nonresident debtor of a conniving disposition might, by subterfuge, fashion a haven of safety within this state for his property. A creditor would indeed be impaled on the horns of a dilemma were he unable to attack a fraudulent conveyance until he had secured a judgment, yet unable to obtain a judgment until he had set aside the fraudulent conveyance. A devious situation of this kind could but suggest the ancient argument as to which comes first, the chicken or the egg, and would prove intolerable. We must make it clear, however, we do not indicate any present opinion as to the validity of Mr. Lehman’s conveyance to his wife. That question remains for determination by the trial court.
Our attention has been directed to the provisions of K. S. A. 60-218 (b) as providing an exclusive method of procedure in situations such as this. So far as now pertinent the statute reads:
“Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, but not exclusively, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money . . .”
Although an attaching creditor might well find it desirable to follow this procedure where applicable, we do not read the statute as being mandatory in character. It is significant that the legislature employed the permissive verb “may,” rather than the mandatory “shall.” In our judgment the statute affords a procedure which may be used, but does not make such procedure exclusive.
The defendant finally argues there was no competent evidence upon which to base the judgment which was entered, and that the court abused its discretion in refusing to set the judgment aside. To support these contentions, Mr. Lehman alleges in his brief that he was not given credit for all child support payments which had been made, although no allegations to such effect were contained in his motion to set the judgment aside.
K. S. A. 60-255 (a) relates to the entry of judgment by default. In pertinent part the statute provides:
“Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. . . .”
It is our opinion that default judgment was properly entered by the court on July 27, 1967. Although the defendant says in his brief that the judgment was entered over his objection, this assertion can be no more than an afterthought on his part, for the record utterly fails to support the statement. The journal entry recites that the defendant appeared neither in person nor by counsel. Furthermore, although Lawrence Lehman was represented in court on July 27th by Robert R. Baker as counsel, Mr. Baker advised the court on oral argument that he did not represent the defendant at that hearing. The record is entirely void of any appearance by the defendant until August 10, 1967, two weeks after the default judgment had been entered.
The journal entry further reflects that at the hearing of July 27th the plaintiff presented “the default petition and authenticated judgment and other evidence,” after which the court “being well and fully advised” found in favor of the plaintiff and entered judgment in her favor. No attempt was made to amend the journal entry, nor has it been shown to be erroneous in any respect. We discern no irregularity in the manner by which this judgment was entered.
Turning to the abuse of discretion alleged against the trial court, based on its refusal to set the default judgment aside, we first note the provisions of K. S. A. 1968 Supp. 60-255 (b):
“For good cause shown the court may set aside a judgment entered by default in accordance with section 60-260 (h).”
K. S. A. 60-260 (b), to which reference is made in the foregoing statute, reads in part:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for tile following reasons: (1) mistake, inadvertence, surprise, or excusable neglect
These provisions were considered by us in the recent case of Wilson v. Miller, 198 Kan. 321, 424 P. 2d 271, where we said that our entire procedure for trial of civil litigation would be destroyed if a judicial summons or other legal process were allowed to be treated with indifferent neglect. The same might well be said if legal process could, with impunity, be willfully or intentionally ignored. Continuing its discourse, in the Wilson case, the court said:
“It is the general rule, and the rule is conceded by appellant, that the relief to be granted under these provisions rests in the sound discretion of the trial court.
“We concur in that policy of the law which favors the hearing of a litigant’s claim on the merits. However, laudable as is the policy, courts are required to make a determination between such a goal and the necessity of achieving finality in litigation.” (pp. 322, 323.)
In a somewhat earlier case, Lackey v. Medora Township, 194 Kan. 794, 401 P. 2d 911, where relief under K. S. A. 60-260 (b) (1) was under consideration, this court stated:
“Since the foregoing provision was lifted from rule 60 of the Federal Rules of Civil Procedure we may look to federal cases for its construction and application.
“Relief under the provision quoted is not a matter of right, but is addressed to the sound discretion of the trial court. See, e. g., Fischer v. Dover Steamship Co., 218 F. 2d 682; Smith v. Kincaid, 249 F. 2d 243; and Petition of Pui Lan lee, 20 F. R. D. 399. Discretion should ordinarily incline towards granting relief in order that judgments reflect the true merits of the case. (Barber v. Turberville, 218 F. 2d 34.) However, it is desirable that final judgments not be lightly disturbed and the motions and the grounds for that relief should be closely scrutinized.” (p.796.)
Under the circumstances disclosed by this record we are not inclined to charge the trial court with abuse of discretion. For many months the defendant chose to ignore the process of the trial court, although he now claims he did not know this lawsuit existed. This claim simply does not stand up under scrutiny. Even after Lehman was compelled to take note of the pendency of these proceedings because money due from sale of the farm was being held up, he continued to disregard the court’s process, pending a futile attempt by his brother to intervene in the action as an interested party.
Although the defendant asserts that his motion to set aside the default judgment was predicated on 60-255 (b), we think it may not be amiss to suggest that any effort to have had it considered under K. S. A. 60-309, which governs the opening of a default judgment based on publication service, would have been equally unavailing. The record discloses neither that the defendant had filed a full answer nor that he was without actual notice of the proceedings, both of which conditions must precede the granting of relief under the foregoing statute.
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The opinion of the court was delivered by
O’Connor, J.:
The juvenile court of Butler county entered an order pursuant to K. S. A. 1965 (now 1967) Supp. 38-808 (b) waiving jurisdiction over Darrell Dean Long. An appeal to the district court, where the lower court’s determination was upheld, was followed by the appeal to this court.
On July 1, 1966, the county attorney initiated proceedings in juvenile court by filing a verified petition in which it was alleged that Darrell, then over sixteen but under eighteen years of age, had committed an act of delinquency which if committed by one over eighteen years of age would be a felony. Seventeen days later, based upon the results of a court-ordered psychiatric evaluation, Darrell was committed to St. Francis Hospital in Wichita for a “total inpatient treatment program” under the care and supervision of Dr. C. J. Kurth. While the treatment was being carried out, the court, on its own motion, set the case for further hearing on August 25, 1966. At the hearing, the court considered whether or not its jurisdiction over the young man should be waived, pursuant to the statute (38-808 [b]). Darrell was represented by Warren Ralston, an attorney, as his duly appointed guardian ad litem, and the boy’s parents were represented by James R. Schmitt. The parties stipulated Darrell’s birth date was September 14, 1948; that he was over sixteen years of age at the time of the alleged offense; and that the offense was punishable as a felony if committed by a person over eighteen years of age. The evidence before the court consisted of various psychiatric and psychological reports relating to the boy from the inception of the case to the time of hearing. Thereupon, the court made the three findings required by the statute (38-808 [b]), concluded that Darrell was not a fit and proper person to be dealt with under the Kansas juvenile code, and directed the county attorney to prosecute him under applicable criminal statutes — all of which is reflected in a written journal entry. A verbatim transcript was made of the waiver hearing and became a part of the record in the case.
An appeal to the district court from the waiver order was perfected by Darrell’s father. The appeal was heard April 10, 1967. By agreement of the parties, the matter was submitted on the file, exhibits, and transcript of the proceedings had in juvenile court. Following oral arguments of counsel, the district judge commented to the effect there was “probably some basis” for the juvenile court’s findings, and he was not going to dismiss the criminal action then pending against Darrell. The journal entry of judgment reflects that the judge’s comments were adopted as specific findings of the court, and the appeal was “denied.” From this order of the district court Darrell has appealed.
At this juncture we should point out that a review of the district court proceedings has disclosed an infirmity of such magnitude that the case must be reversed and remanded.
It is apparent from the record the district judge misconceived his true function when considering and determining an appeal from juvenile court relating to the waiver of jurisdiction. Instead of hearing the matter de novo and making his own independent findings and conclusions, he sought to determine whether or not there was evidence to support those of the juvenile court. Unfortunately, the judge did not have the benefit of our recent decision in In re Templeton, 202 Kan. 89, 447 P. 2d 158, where we said, inter alia:
“When an appeal to the district court is taken from a waiver order entered by the juvenile court pursuant to K. S. A. 1967 Supp. 38-808 (b), the district judge must hear the case de novo, subject to the same limitations as to jurisdiction and issues applicable to the juvenile court.” (Syl. f 2.)
An appeal from a waiver order entered by the juvenile court is to be heard and disposed of just as if the waiver proceedings had originated in the district court and no action had been taken by the lower court. The district court, although functioning as an appellate court only in a statutory sense, actually is in the same position as a court of original juvenile jurisdiction. The district court considers anew all evidence that any party may desire to present. Any evidence relevant to the waiver question is admissible, whether introduced in the lower court or not. The parties may, as they did here, agree to submit the matter on the same evidence heard and considered by the juvenile court. The district court is in no way committed by the findings of the juvenile court; nor is the lower court’s conclusion, that jurisdiction be relinquished, binding in any respect. From the evidence introduced in the district court, the judge is to make his own independent findings and determination, all in accordance with what was said in In re Templeton, supra.
The excessive amount of time elapsing between the waiver order entered by the juvenile court on August 25, 1966, and the hearing of the appeal in this court at our November 1968 session requires a brief comment. Darrell, who was seventeen years of age when jurisdiction was first waived, is now twenty years old. The case is being returned to' the district court for reconsideration of the waiver question, which includes the issue of whether or not the young man is amenable to the care, treatment and training program available through the facilities of the juvenile court. While we express no opinion on what the ultimate disposition of the case should be, the best interests of all concerned dictate that proceedings of this nature require expeditious treatment at every stage of the appellate process. Although the statutes are silent regarding preferential settings of juvenile court cases in appellate courts, we believe the very nature of the proceedings, particularly when a waiver order is involved, requires early disposition by both the district court and supreme court. The bench and bar are admonished to give such cases the preferential treatment that justice and public interest may require. (See Supreme Court Rule No. 10 [&], 197 Kan. lxvi. )
The judgment is reversed and the case remanded to the district court with directions to proceed in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Harman, C.:
Plaintiff brought this action for damages for alleged breach of contract to make timely delivery of furniture. Trial was to a jury which found plaintiff had not timely performed its obligations under the contract. Judgment was entered for defendant and plaintiff has appealed.
Plaintiff constructs and operates college dormitories and efficiency apartments. Defendant manufactures and sells furniture at Stanley-town, Virginia. During the period from May to September, 1965, plaintiff constructed a seventy-two unit efficiency apartment building in Pittsburg, Kansas, for rental to college students. In April, 1965, it ordered certain items of furniture from defendant’s sales representative at Overland Park, Kansas. Plaintiff wanted the furniture to be delivered at Pittsburg by September 1 so as to have the apartments furnished by the time students arrived for the fall term at Kansas State College at Pittsburg, which was understood by defendant. Enrollment at the college was scheduled to commence Monday, September 13. Generally most of the students moved into Pittsburg on the preceding Sunday.
Defendant acknowledged and accepted plaintiffs order. Part of the furniture ordered was from defendant’s open stock and the remainder had to be specially upholstered to plaintiff’s design. Defendant shipped the open stock portion to plaintiff the latter part of June, 1965, but only after plaintiff had made special credit arrangements, that is, plaintiff’s president personally guaranteed payment thereof. The remainder of the order, which is the subject of this controversy, was for five chairs for each of the seventy-two apartments, or a total of 360 chairs, all covered with a particular fabric chosen by plaintiff. Printed forms of defendant acknowledging the order stated its terms of payment were: “CBD.”
On behalf of defendant it was shown the letters “CBD” meant, in the case of furniture carrried in open stock, payment therefor must be made before delivery; further that for furniture which had to be fabricated to a particular design the expression contemplated full payment of the purchase price prior to commencement of production of the furniture, or a deposit of at least fifty percent of the purchase price.
Around July 31 plaintiffs president learned defendant would not ship the order until it was first paid for; at this same time defendant’s sales representative told Mr. Black, a Pittsburg decorator through whom plaintiff purchased the furniture and who acted as plaintiff’s agent throughout, to get the check for the furniture in, that they normally needed at least thirty days; this conversation was repeated several times; on August 18 or 19 defendant by telephone made further request of plaintiff for payment.
September 2, 1965, defendant received plaintiff’s check dated August 31 in payment for the chairs. The chairs were loaded on railroad cars at defendant’s plant September 10. Shipment was made September 13 and the chairs arrived in Pittsburg during the week of September 26, 1965.
Plaintiff asserts defendant’s delay in shipping the chairs caused it to lose rentals of its apartments and to incur replacement expense, constituting the damages sought in this action.
As indicated, in answer to special questions, the jury, after first finding defendant agreed to furnish the chairs by September 1, 1965, found that plaintiff did not timely perform all of its obligations under the agreement. Plaintiff contends there was no substantial evidence to support this finding. It says the terms of the contract were express and its only obligation thereunder was to pay the purchase price and upon such payment it became entitled to immediate delivery. Stated another way, plaintiff asserts a breach of the contract in defendant delaying shipment of the chairs for any length of time after it received the purchase price.
Plaintiff’s entire argument is premised on its assertion there was no dispute as to the terms of the contract. Actually the terms of the contract as to time of payment were very much in dispute throughout this litigation, as raised initially by defendant’s answer in the case, as disclosed by the evidence and as finally submitted to the jury. Plaintiff contends its only obligation under the contract was to make payment prior to delivery of the chairs. The contract was partly written and partly oral. Plaintiff’s theory overlooks positive evidence by defendant that payment for the custom-made chairs was to be made prior to their being upholstered with particular fabric selected by plaintiff. At trial, plaintiff’s employee who handled the purchase of the furniture acknowledged there was no standard custom from one company to another in the manner of making financial arrangements on these purchases; that in most cases the term “CBD” means cash before delivery but not in every case; that there was a difference where furniture was specially made as compared to stock merchandise. There was also dispute as to whether defendant had made oral demands for payment upon plaintiff’s employee.
All these issues, including the terms of the contract and performance by the parties, were, upon conflicting evidence, submitted to the jury for decision. Implicit in the jury’s finding was a rejection of plaintiff’s theory as to the terms of the contract regarding payment. The burden of proof upon all disputed issues was on plaintiff. Here we have a negative finding of fact by a jury against the one having the burden to prove that fact. The effect of the finding is that such party did not sustain the requisite burden of proof. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the jury, the finding cannot be disturbed. Appellate courts cannot nullify a jury’s disbelief of evidence nor can they determine the persuasiveness of evidence which a jury may have believed (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670). Hence the finding complained of may not be disturbed.
Plaintiff’s only other specification of error is that during the closing argument to the jury counsel for defendant made the following statement:
“Once the chairs in question are fabricated or covered, the chairs could not be resold, and the coverings on said chairs could not be removed.”
Plaintiff objected to this statement, the objection was sustained and the jury was admonished to disregard the remark. Plaintiff now says the remark was so prejudicial as to deprive it of fair trial. We think not. Although the trial court sustained the objection, there was evidence given by defendant’s salesman in connection with defendant’s requirement for a deposit on custom upholstered furniture “because this is the customer’s choice, we can’t very well be stuck with 116 chairs of only one fabric,” and we see no prejudice arising from the incident.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from orders denying appellant’s motion to vacate sentence and motion for rehearing, both seeking post-conviction relief, pursuant to K. S. A. 60-1507. Although counsel was appointed and presented appellant’s motions in the district court, no evidence was adduced, and the motions were overruled.
Appellant complains the district court erroneously denied him a full evidentiary hearing and also his request to be present at such a hearing. The principal ground of appellant’s motion upon which he contends he was entitled to have his sentence vacated is that his plea of guilty to the offense of robbery in the first degree was involuntary and coerced because (1) of an alleged illegal confession and (2) the possibility the county attorney would seek to invoke the provisions of the habitual criminal act. The inadequacy of these assertions to justify the setting aside of an otherwise voluntary plea of guilty under analogous facts was fully discussed in Stiles v. State, 201 Kan. 387, 440 P. 2d 592, and Perry v. State, 200 Kan. 690, 438 P. 2d 83, and our holdings in those cases are controlling here. Such allegations raised no substantial issue of fact as to events in which the appellant participated; therefore, a full evidentiary hearing was not required. (Rule No. 121 [h], 197 Kan. lxxv.)
As a part of his argument on appeal, the appellant urges that the manner in which the county attorney “administered” K. S. A. 21-107a constituted a denial of appellant’s constitutional rights not to plead guilty and demand a jury trial. On the morning of trial, and prior to appellant’s plea of guilty, the county attorney served a notice in writing on the appellant and his counsel that the state reserved the right to invoke the habitual criminal act in the event of conviction. Although an enhanced sentence was not imposed, appellant argues that because the possibility existed that the county attorney would seek to invoke the provisions of the act he was “discouraged” from insisting on a jury trial. Appellant attempts to sustain his position by relying on United States v. Jackson 390 U. S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209, wherein the Supreme Court held the death penalty provision of the Federal Kidnapping Act to be unconstitutional because it imposed an impermissible burden upon the accused’s exercise of his fifth amendment right not to plead guilty and his sixth amendment right to demand a jury trial. The argument is not convincing. Unlike the penalty provision in the federal kidnapping statute, the penalty under Kansas statute for the offense of robbery in the first degree is the same whether the accused pleads guilty or is tried and found guilty by a jury. Under either alternative, the provisions of the habitual criminal act may be invoked if the accused’s prior record justifies the same. The choice of pleading guilty or standing trial is for the accused. In exercising that choice, he may well take into consideration the possibility of an enhanced sentence, but that possibility alone does not, in our view, cast upon the accused an impermissible burden of the magnitude referred to in Jackson. Here, the appellant, after consulting with his counsel, chose to plead guilty as an alternative to trial. We find nothing in the record indicating that appellant’s rights not to plead guilty and demand a jury trial were impaired in any way, nor is there anything amounting to coercion which would vitiate his plea of guilty. (Stiles v. State, supra; Fields v. State, 195 Kan. 718, 408 P. 2d 674.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a judgment dismissing an action against a city for the reason the petition failed to contain a sufficient statement and denying permission to amend the petition for the reason the statute of limitations had intervened.
The petition filed by Moetta James alleges:
“On August 28, 1964, at the intersection of Payne and 17th Streets, in Wichita, Sedgwick County, Kansas, Loyns Manuel, an agent of the City of Wichita, while acting upon the business of the City of Wichita, negligently drove a motor vehicle against the vehicle in which plaintiff was riding.
“As a result, plaintiff was thrown down, sustained a broken collar bone, a broken knee cap, and miscellaneous bruises and abrasions, and suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of $900.00.
“Wherefore, the plaintiff demands judgment against the City of Wichita, Kansas, and Loyns Manuel jointly and severally in the sum of $12,000.00, the costs of this action, and such other relief and remedy as the court shall deem just and equitable.”
At a pre-trial conference, held over a year after answers were filed, the defendant city moved for a dismissal on the ground the petition failed to allege the filing of a claim as required by K. S. A. 12-105.
K. S. A. 12-105 provides:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: . . . Such city shall have thirty (30) days from the time of the filing of such statement to make settlement with the claimant if it so desire.”
During argument on the motion plaintiff moved for permission to amend the petition to allege compliance with the statute. A copy of a statement of accident and injury, together with a receipt showing service on September 18, 1964, was submitted to the court in support of the motion.
The sufficiency of this statutory notice is not questioned. It reads as follows:
“Statement of Accident and Injury.
“To the Clerk of the City of Wichita, Kansas:
“On August 28, 1964, at approximately 2:30 o’clock p. m., at the intersection of Payne and 17th Streets in the City of Wichita, Kansas, a collision occurred between the automobile driven by Sharon Kay James and a Sanitation Truck of the City of Wichita driven by Lyons (sic) Manuel, a City employee.
“Moetta James was a passenger in the automobile driven by Sharon Kay James. As a result of the collision caused by negligence of the driver of the Sanitation Truck, Moetta James sustained a broken collar bone, a broken knee cap, and miscellaneous bruises and abrasions. She is currently confined at St. Francis Hospital and School of Nursing, Inc., and the amount of injury which she has sustained is presently undeterminable.
“I hereby certify that the same is correct, reasonable and just.”
The petition was filed within two years after the accident. The amendment, if allowed, would have been made after the two year statute of limitations had run.
The first question presented is whether the statement in the petition is sufficient to set forth a claim showing the pleader is entitled to relief against the city under our present rules of pleading.
K. S. A. 60-208 (a) provides:
“A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.”
The statute requires a short and plain statement of the claim showing the pleader is entitled to relief.
K. S. A. 60-209 (c) provides:
“Conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”
In the present case the pleader did not attempt to plead compliance with K. S. A. 12-105. She did not plead performance of the condition precedent by a general averment.
To support her position, that the statement of claim set forth in the petition was sufficient, plaintiff points out the petition follows Form No. 13 contained in the appendix of forms referred to in K. S. A. 60-268. These forms are for illustration purposes. They are intended to indicate the simplicity and brevity of statement which the rules of pleading contemplate. The provisions of the pleading statutes control any decision which concerns the actual sufficiency of a pleading. The form used as a model (Form No. 13) does not purport to state a claim for relief against a municipality and its contents, are not persuasive in the present case.
In a long line of cases this court has held compliance with K. S. A. 12-105 is an indispensable element in a claim for relief against a city. In Cook v. Topeka, 75 Kan. 534, 90 Pac. 244, the effect of the statute on pleading a claim for relief was considered and discussed. In subsequent cases this court consistently held the filing of the statutory statement of accident and injury was a condition precedent to maintenance of the action and must be pleaded and proved. (See Hibbs v. City of Wichita, 176 Kan. 529, 271 P. 2d 791.) Under our former practice which required fact pleading this condition precedent had to be pleaded and proved with particularity. (See Hibbs v. City of Wichita, supra; McGinnis v. City of Wichita, 180 Kan. 608, 306 P. 2d 127; Alexander v. City of Arkansas City, 193 Kan. 575, 396 P. 2d 311.)
Compliance with the statute remains a condition to be met before a claim for relief against a city may be maintained. A party who fails to file the statutory statement is not entitled to relief.
It is conceded in this case the plaintiff complied with the statute but failed to plead her compliance. Our pleading statute requires a general averment that conditions precedent have been performed or have occurred. (K. S. A. 60-209 (c)) Under the concept of notice pleading a general averment is sufficient. It is no longer necessary to set forth with particularity all facts required to prove compliance.
Performance of this condition precedent is a prerequisite to a valid claim for relief against the city. The plaintiff did not aver performance of the condition. Therefore the petition did not indicate the pleader was entitled to relief. The petition was defective.
We turn to the second question presented.
At pre-trial conference the plaintiff moved for permission to amend the petition in this particular. It is conceded the statutory statement of claim was filed with the city clerk in compliance with K. S. A. 12-105. The original petition stated a claim based upon the same conduct or occurrence. The city did receive timely notice of the conduct or occurrence out of which the claim arose.
The code authorizing the amendment of pleadings specifies that leave shall be given freely when justice so requires. (K. S. A. 60-215 (a).)
K. S. A. 60-215 (c) provides:
“Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.”
While there is no exception stated in the rule it should not be applied when it would be inequitable or work an injustice to strictly apply the doctrine of relation back. (Gerrard v. Campbell, D. C. Ill., 81 F. Supp 752.)
Under the case law existing prior to the adoption of our present rules of practice if the petition failed to allege fulfillment of a condition precedent an amendment did not relate back so as to toll the running of a statute of limitations. (Liphart v. Myers, 97 Kan. 686, 156 Pac. 693; Becker v. Porter, 119 Kan. 626, 240 Pac. 584; Clark v. Wilson, 149 Kan. 660, 88 P. 2d 1070; Lane v. Franco-Central Oil Co., 184 Kan. 789, 339 P. 2d 1.)
On the other hand if the amendment merely amplified, corrected or perfected the statement of facts the amendment related back to the original petition and the statute was tolled. (Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908; Smith v. LaForge, 170 Kan. 677, 228 P. 2d 509.)
The present rules of practice in Kansas are patterned after the federal rules. The federal rules seek to make pleadings and amendments less technical in keeping with the idea that pleading a precise cause of action should not be the deciding factor. The deciding factor on relating an amendment back to the petition is whether the other party was actually notified of the litigation involving a described conduct, transaction or occurrence. (Tiller v. Atlantic Coast Line, 323 U. S. 574, 89 L. Ed. 465, 65 S. Ct. 421.)
The notes of the advisory committee which drafted our present rules of practice read in part as follows:
“Section (c), dealing with relation back of amendments, is important only when the statute of limitations would bar a new suit. Here an amendment which changes the ‘cause of action,’ as that term has been commonly construed, is allowed if the amended claim arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and thus defeat the bar of the statute of limitations.” (Gard, Kansas Civ. Proc. §60-215 (c), p. 79.)
Fowks, Harvey and Thomas in 2 Vernon’s Kansas Statutes Annotated, § 215.4, p. 83 state:
“Subdivision (c) provides that an amendment may relate back to the date of the original pleading when the claim or defense, asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. This would appear to be a more liberal test than that existing under previous practice. Clearly, if no statute of limitations is involved, the court should freely permit amendment, even though a new claim is thereby introduced, if an expeditious disposition of controversies between the parties will thereby be furthered. (Citing cases.)
“If there is a statute of limitations question in the case, a pleading may not be considered as relating back where it is amended to state a new or different claim or defense unless such claim or defense arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. . . .”
In support of the trial court’s order refusing the amendment the city cites United States v. Reiten, D. C. Alaska, 1961, 191 F. Supp. 864 and Texas Cement Co. v. McCord, 233 U. S. 157, 58 L. Ed. 893, 34 S. Ct. 550. Those cases relate to petitions filed before any claim for relief came into existence. The petitions were filed prematurely. The conditions precedent to those claims did not occur until after the petitions were filed. In such case an amendment cannot relate back to antedate compliance with the conditions precedent.
In the present case K. S. A. 12-105 was complied with long before the petition was filed. The condition was performed and plaintiff’s claim for relief had been perfected.
The provisions of K. S. A. 60-215 (c) were considered in Schmidt v. Nauman, 202 Kan. 131, 446 P. 2d 828. The question in Schmidt related to an amendment setting up a claim for relief against a corporation not previously in the action. It was held the filing of the petition did not toll the statute of limitations as to the corporation. No claim for relief against the corporation was attemped by the pleader until permission to amend was sought. An amendment under such circumstances does not relate back to the original petition. This holding is in line with the federal authorities applying Federal Rule 15 (c) as it appeared prior to amendment in 1966 and as it now appears in K. S. A. 60-215 (c). (See United States v. Western Casualty & Surety Company, C. A. Tenn., 1966, 359 F. 2d 521.)
The facts encompassed in our present case parallel those in Anderson v. Abbott, Ky. 1945, 61 F. Supp. 888. In Anderson the plaintiff failed to plead facts showing a statutory condition precedent to the action had been met. Amendment was permitted to show the condition precedent to liability had occurred. The court held the amendment related back to toll the statute since the claim asserted in the amendment pleading arose out of the conduct, transaction or occurrence attempted to be set forth in the original pleading.
In keeping with the concept of notice pleading which abandons the technical implications of asserting all facts necessary to prove and establish a claim for relief, the amendment should have been permitted. The amended pleading asserted a claim which arose out of the same conduct or occurrence attempted to be set forth in the original pleading. The provisions of K. S. A. 12-105 had been complied with before the petition was filed. The defendant city was properly advised and notified of the occurrence which gave rise to the claim. We discern no injustice to defendant in relating the amendment back to the original petition. The intervention of the bar of the statute of limitations is not sufficient reason to refuse the amendment in this case. To refuse amendments for this reason alone would render K. S. A. 60-215 (c) meaningless.
The judgment is reversed and the case is remanded with instructions to permit the amendment and proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Kaul, J.:
The question presented in this appeal is whether the joint and mutual will of Erman Clinton Wade and Wilma E. Wade is contractual.
The evidence consisted of the testimony of the two witnesses to the will and that of Jacob E. Wade, the scrivener and a brother of Erman.
The findings of fact made by the trial court are not disputed by the parties. The position of appellants on appeal is that the trial court, after finding that Erman and Wilma agreed to make a joint and mutual will, erroneously concluded that the will was not contractual.
Following the trial court’s decision the appellants filed a motion for a new trial in which they stated that, although the trial court correctly found the facts from the undisputed evidence produced, the decision rendered was inconsistent therewith. Appellants contended in their motion, as they do on appeal, that the findings recited in findings No. 1 compelled a conclusion that the joint will was contractual, the minds of the parties having met and there having been ample consideration for the agreement reached. Appellants also claimed that costs should be taxed against the estate, irregardless of which party prevailed.
The trial court overruled appellants’ motion for a new trial, except as to costs. Thereafter appellants perfected this appeal.
The factual background is set out and the issue on appeal is framed by the findings and conclusions of the trial court which are recited in full as follows:
“MEMORANDUM OF DECISION
“Filed March 29, 1967
“This appeal from the Probate Court was tried on January 18, 1967, at the conclusion of which trial counsel were given leave to file briefs within 30 days. Such briefs were filed on February 17, 1967, since which date the matter has been under advisement for decision.
“The sole issue presented by the appeal is whether or not the joint and mutual will of Erman Clinton Wade (hereinafter referred to as H) and Wilma E. Wade (hereinafter referred to as W) is contractual.
“The evidence upon which the appeal was submitted consists of the testimony of Densil Cox and Verona Cox, who signed the will as witnesses; the testimony of Jacob E. Wade (hereinafter referred to as Jacob), who is a brother of H; the Probate Court file of the Estate of H; and the transcript from the Probate Court in connection with the Estate of W; from which Estate this appeal originated.
“From such evidence the facts essential to a disposition of said appeal are found to be as follows:
“1. Some weeks prior to January of 1952 H had suffered a stroke and was thereafter confined to his bed most of the time. On January 16, 1952 knowing that Jacob was in town, W, at the request of H, called to ask that Jacob come to the home of H and W. Upon Jacob’s arrival H said that he wanted a will drawn so that all of their property would go to H’s brothers and sisters. W did not want this and said that some of the property should go to her relatives. In response to W’s remark H asked her how much she thought should go to her kin and she said one-fourth, to which request H agreed and asked Jacob to prepare a will.
“2. Jacob, who is not a lawyer but who had prepared wills for a few of his neighbors, agreed to prepare a will as requested by H but had to go to a local print shop to secure a form before he could do so. Upon his return, Jacob filled out the will form, had H and W sign it and told them they would need to get two witnesses to sign the will, following which Jacob left the home.
“3. W was not too happy about having signed the will but so as not to unduly upset H, she drove to Baldwin to the home of the Coxes the next day and at her request they came to the home of H and W in the afternoon to witness the will. At the time the Coxes arrived W was in the kitchen but she had gotten H np and he was sitting in a chair in the living room. W took the Coxes into the living room and handed them the will, and after reading at least a part of the will Densil Cox and Verona Cox signed as 'witnesses. The Coxes were tenants of a farm owned by H and W and after visiting briefly with H, they left.
“4. The will in question reads as follows:
“Known All Men by These Presents, And to all whom these presents may concern, be it known that We Erman Clinton Wade and Wilma E. Wade, of the County of Douglas 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.
“First, That in the event of the death of one of the above named Testators all property, both Real estate, Personal, all moneys or any other values tangible or intangible shall be the sole property of the one who survives. To be used at their own discretion.
“2. That we desire that Jacob E. Wade shall be appointed as administrator of the estate.
“3. That upon the death of both above named Testators the remaining property shall be disposed of firth (sic), three-fourths of said property shall be divided on an equitable basis to the brothers and sisters of Erwin Erman Clinton Wade and one fourth to those of nearest relation to Wilma E. Wade.
“In Witness Whereof, We have this Sixteenth day of January A. D. 1952, signed, sealed and declared this my last will and testament, and do hereby revoke all other wills by me made.
“/s/ Erman Clinton Wade
“/s/ Wilma E. Wade
“The signatures to the foregoing will of the said Erman Clinton Wade and Wilma E. Wade was acknowledged by us in our presence to be their act and deed and we have attested the same in their presence.
“/s/ Densil Cox
“/s/ Verona Cox
“Witnesses
“January 16, 1952
“5. H died on April 10, 1952 and on January 22, 1953 W filed a petition for administration of his estate on the theory that H had died intestate because of the will of January 16, 1952 was not subscribed, attested or acknowledged as his will. To this petition the brothers and sisters of H (who shall hereinafter be referred to as appellants) responded by contending that the will of January 16, 1952 was the will of H and should be admitted to probate as such. After due hearing the will was admitted to probate as the will of H. W elected to take under such will by failing after due notice to elect otherwise, and Jacob, who was named as administrator in the will, was appointed and qualified as Executor. In connection with the final settlement of H’s Estate, appellants sought to have the will interpreted as being contractual and as giving W a life estate with the remainder over as provided by clause 3 of the will. W, on the other hand, sought an interpretation which would give her the fee and would hold that the will was not contractual. The judgment of the Probate Court is expressed in its Memorandum Decision which reads as follows:
“Clause 1 of the Wade Will in effect creates a joint tenancy as to all property owned by the Wades’ so that on the death of either, all of said property becomes the sole property of the survivor in fee. Clause 3 of the Wade Will then becomes the will of the survivor.
“Or, to put it in another way, clause 3 of the Wade Will is not a limitation of the fee granted by both of the Wades’ to the survivor of them in Clause 1, but rather it is the Will of the survivor.
“The question as to whether or not the joint will in question is contractual so as to bind the survivor’s property to the conditions of clause 3, must await the death of the survivor. Should she make another Will in which the property remaining in her hands at the time of her death is devised and bequeathed in a manner contrary to the terms of clause 3 of the joint will, then those concerned could try to establish their position relative to the joint will being contractual at such time as such other will was offered for probate. If on the other hand Mrs. Wade should die without making another will, the joint will could then be probated as her will and no question as to it being contractual could be raised. In other words, Mrs. Wade has not yet done anything to breach a contract if indeed one does exist.
“It would follow that the property Erman Clinton Wade, Deceased should be assigned to his widow, Wilma E. Wade.
“Done and signed at Lawrence, Kansas January 7, 1955.
“/s/ Frank R. Gray
“Probate Judge
“No appeal was taken from such judgment.
“6. On August 10, 1962 W executed a will in which she revoked all prior wills and in which the disposition of her estate was not as provided by clause 3 of the joint will of January 16, 1952. W died on October 30, 1965. On November 8, 1965 the person named as Executor in the 1962 will filed a petition for its probate and on November 29, 1965 appellants filed a petition for probate of the 1952 will alleging it to be a contractual will. After due hearing the Probate Court admitted the 1962 will as the last will of W and found that the will of 1952 was not contractual, from which latter judgment appellants appealed.
“From the foregoing facts the following stated conclusions of law are made:
“1. Although clause 3 of the 1952 will was the will of W after the death of H, there is nothing in the scant evidence of the conversation between H, W, and Jacob nor in the will itself which indicates an agreement between H and W that the survivor of them was bound by clause 3. The elements requisite to a contractual will are well stated and analyzed in the case of In re Estate of Miller, 186 K. 87 at p. 95.
“2. There is nothing in the will or the extrinsic evidence which indicates an agreement to create a vested remainder in anyone after the death of the survivor of H and W. See for example: Zabel v. Stewart, 153 K. 272.
“3. The 1952 will was revocable (169 ALR 22) and by her will of 1962 W revoked the 1952 will.
“It follows that judgment should be entered in accordance with the foregoing findings and conclusions.
“The clerk is therefore and hereby directed to enter the following judgment: The will of January 16, 1952 signed by Erman Clinton Wade and Wilma E. Wade is not contractual and was revoked by the last will of Wilma E. Wade dated August 10, 1962. The costs of this appeal are assessed against appellants. All in conformity with the Court’s Memorandum of Decision filed this date.
“Signed and dated at Lawrence, Kansas on March 29,1967.
“/s/ Frank R. Gray
“District Judge.”
Because of the manner in which the question on appeal is presented the evidence is not abstracted. The record consists of the trial court’s memorandum of decision, appellants’ motion for a new trial, the ruling thereon, as heretofore noted, and two statements from the record, one of which concerns the inventory and appraisal of Erman’s estate and the other is an estimate of Wilma’s estate following her death.
Even though some irregularities are indicated by the findings of the trial court apparently no objections, as to the form or execution of the joint will, were lodged at any stage of the proceedings. No point is made as to whether appellants chose the appropriate remedy in probate court by offering the 1952 will as a contractual will in opposing the petition for the probate of Wilma’s 1962 will. The procedural problem referred to was before this court in In re Estate of Adkins, 161 Kan. 239, 167 P. 2d 618, wherein the question whether the prior joint will should be enforced as a contract was recognized as an equity question, but it was noted that probate courts had received equity powers under G. S. 1943 Supp., 59-301(12), now K. S. A. 1968 Supp. 59-301(12).
Not having the benefit of the original joint will, or a reproduction thereof, we are unable to accurately distinguish the portions written by the scrivener from those already printed in the will form. Lack of this information is of no moment, however, since we are not called upon to determine from the face of the will whether it was the product of a contract but only with the simple question as to whether the trial court’s findings of fact compel a conclusion that the joint will was contractual.
We shall approach the problem by first examining the findings of fact, particularly finding No. 1 in which the facts crucial to a determination of this appeal are set out.
It is established in finding No. 1 that Erman being in ill health and having no direct heirs deshed to make a will bequeathing his and Wilma’s property to his brothers and sisters. Wilma declined Erman s proposition and replied that some of the property should go to her relatives. In response to her refusal and counterproposal, Erman inquired of Wilma how much she thought should go to her kin and she replied one-fourth. The trial court found that Erman agreed to Wilma’s request and asked Jacob to prepare a will. Clause No. 3 of the will expresses the agreement of the parties.
The facts disclose an offer by Erman, a rejection and counteroffer by Wilma followed by an acceptance by Erman. The counteroffer by Wilma that she would agree to a division of three-fourths to Erman’s brothers and sisters and one-fourth to her relatives obviously was designed as the basis of a bargain or representation intentionally made to induce, and which did induce, an acceptance on the part of Erman. We believe the facts clearly indicate that Erman and Wilma had arrived at a settled purpose that disposition of their property at death should be governed by a will expressing their agreement. The minds of the parties met, their mutual promises were sufficient consideration to support the agreement and the terms thereof are clearly ascertainable.
In conclusion No. 3 the trial court indicates that it is necessary to establish a further agreeement between Erman and Wilma that the survivor of them was bound by clause No. 3. In effect such a holding would require proof of an additional agreement that the parties would be bound by the agreement already made as to the disposition of their property on the death of the survivor. We know of no authority, and are cited to none, sustaining such a position with respect to contractual wills. A mere agreement to make a joint will does not necessarily become an irrevocable contract, but such an agreement is not before us. The contract established by the evidence here consisted of more than merely an agreement to make a will, it included the mutual promises of the parties as to the disposition of their property on the death of the survivor. An agreement to be bound is inherent in such a contract.
Controversies pertaining to the contractual character of joint wills are generally decided on the particular facts of each case and therefore are of limited value as precedents; however, certain guidelines are well-established and should be noted.
Rroadly stated, the general rule appears to be that a joint and mutual will, executed pursuant to an agreement based on a valuable consideration, is contractual as well as testamentary and becomes an irrevocable obligation on the part of the surviving testator upon the death of the other party testate under a will which is in accord with the terms of the agreement. (97 C. J. S., Wills, § 1367 [c], p. 304; 57 Am. Jur, Wills, § 712, p. 482.)
In this state the dual aspect of a will executed pursuant to an agreement appears to have been first recognized in Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147, wherein it was held:
“A will executed under an agreement founded upon a valuable consideration is contractual as well as testamentary. In the latter aspect it may be revoked without the consent of the beneficiary, but not in the former. . . .” (Syl. f 3.)
Nelson v. Schoonover, supra, did not involve a joint will. However, the case was followed a month later by the decision in Carle v. Miles, 89 Kan. 540, 132 Pac. 146. This case dealt with separate, mutual and reciprocal wills executed pursuant to a contract. The will of the first deceased testator was attacked on the ground that such an instrument could not be recognized as a will since it was against public policy that wills should be irrevocable. The argument was rejected and the wills were upheld. In the opinion the rule noted in 136 Am. St. Rep. 592 was cited as authority. The rule referred to sets out that a fixed obligation results when mutual and reciprocal wills are executed pursuant to an agreement of the parties and in substance amounts to the general rule which we have stated.
Although the cases reflect some confusion by reason of variances in use of terms, the rule has been consistently followed in this jurisdiction since the decision in Miles.
The holding in Miles is noted with approval in Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421, wherein it was further stated:
“There is some confusion in the authorities concerning the power of one of the parties to a mutual and reciprocal joint will to revoke it; but the rule supported by the better reasoning and by the weight of authority is that if such a will has been made and one of the parties thereto dies and the other accepts benefits thereunder, the survivor cannot thereafter revoke it. . . .” (pp. 273, 274.)
It was also noted in Lewis that, even though the testimentary part of the instrument had been revoked, the contractual part would be enforced.
In Eikmeier v. Eikmeier, 174 Kan. 71, 254 P. 2d 236, the evidence established that the separate mutual and reciprocal wills of a husband and wife were the product of an agreement. In an action to set aside a conveyance by the surviving husband, it was stated:
“. . . Holding, as we do, that Fred’s will was the product of a contract and agreement, he is bound by its terms, even though the practical result thereof is that he is enjoined and prohibited from divesting himself of the tract during his lifetime. . . (p. 81.)
In West v. Sims, 153 Kan. 248, 109 P. 2d 479, the action was to enforce an oral contract, however, the factual background is quite similar to that of the instant case, it was held:
“In an action to enforce an oral contract to bequeath property, including real estate, where a man and wife made an oral contract to bequeath the property of each to the survivor, and at the death of the survivor to a third person, and a joint will was made to that effect, and after the death of the wife the husband destroyed the will, held, that the contract was clear in its terms, was established by clear and convincing evidence, was supported by a good consideration and its enforcement was equitable.” (Syl. f 1.)
Although the court has consistently held that a joint, mutual and reciprocal will is contractual as well as testamentary where it has been shown to be the product of an agreement, difficulty has been encountered as to the proof required of the existence of an agreement. While the question of the validity or legality of the agreement is one of law it has become firmly established that whether a will was the product of an agreement is a question of fact. (In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033, and Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307.) In other words, the ultimate determination becomes a matter of proof as to whether the will was the result of a contract unless the will expressly recited that it was contractual as in Berry v. Berry, 168 Kan. 253, 212 P. 2d 283.
The agreement must be established by full and satisfactory proof which cannot be supplied by a presumption stemming from the mere fact that the will was mutual. (In re Estate of Miller, supra, Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065.)
Proof may be developed by extrinsic evidence, as in the instant case, or the will itself and its terms may be taken into consideration as circumstantial evidence upon which to base a finding whether or not the will is contractual. The subject is discussed in depth in In re Estate of Miller, supra. The reader interested in further perusal is referred to “Joint and Mutual Wills” by Justice William A. Smith in Kansas Judicial Council Bulletin, April 1946, pp. 3 to 9, incl.
It will suffice to say here that the facts, as found by the trial court, show that the instant will was the product of a contract, definite and certain in its terms, and unequivocal as to the parties.
At this point it should be noted that in this jurisdiction it is well-established that the rule barring parol evidence, offered to change or alter the terms of an unambiguous will, does not render inadmissible extrinsic evidence that a will was executed pursuant to an agreement. (In re Estate of Tompkins, 195 Kan. 467, 407 P. 2d 545, and Eikmeier v. Eikmeier, supra.)
Appellees rely heavily on our recent holding in the case of In re Estate of Miller, supra. In Miller a husband and wife executed a joint and mutual will, leaving all their property to the survivor absolutely, conditioned upon a provision whereby the wife devised eighty acres of her separate property to named grandchildren and by another provision left all then- property to their daughter upon the death of both of them, which was construed to be a common casualty clause. The parties died at different times and it was held that the Fourth paragraph of the will providing for disposition “Upon the death of both of us” was ambiguous when read with the Third paragraph of the will which provided for disposition to the survivor in the event of the deaths of the testators at different times. Since James H. Miller and Elsie R. Miller did not die at the same time the contingency expressed in the Fourth paragraph did not occur. Inasmuch as the Fourth paragraph was inoperative, James Miller, being the survivor, was free to make a disposition of his property by will or otherwise.
It was further stated in the opinion “The record in the instant case is wholly devoid of any extrinsic evidence establishing a contract between the Millers.”
The facts and circumstances in Miller are readily distinguishable from those present in the instant case. First, it was necessary to construe the will in Miller to give force and effect to the provisions pertaining to the sequence of deaths which made inoperative the provision for disposition on the death of the survivor; secondly, one of the parties willed property individually owned by her to a specific beneficiary; thirdly, and perhaps most significant of all no extrinsic evidence was received. None of these circumstances prevail in the case at bar.
Appellees direct our attention the case of Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177, cited by the trial court in conclusion No. 2. They argue that it supports the proposition that there is nothing in the will or extrinsic evidence which indicates an agreement to create a vested remainder in anyone after the death of the survivor. The Zabel case involved a joint will in which the makers expressly reserved “the right to change, alter or annul the same at any time they may desire.” The will in Zabel futher bequeathed and devised only that part or portion of the property owned by testators at the death of the survivor which was undisposed of by deed, gift or will (emphasis supplied.). The Zabel case is not in point either with respect to the terms of the will or the extrinsic evidence.
Appellees also cite the case of Menke v. Duwe et al., supra. The real import of the holding in Menke is a reiteration of the rule that the contractual character of a will is a fact to be established by the evidence. It is pointed out in the opinion that in the absence of, or contradiction by, extrinsic evidence the court must find in the will itself the elements necessaiy to establish the fact that a contact existed and that the mere execution of a joint will is not of itself sufficient evidence of an enforceable contract. A warning is sounded against judicial declarations that a will is contractual merely because it is mutual in form. The necessary elements were not found in the Menke will and the extrinsic evidence established the nonexistence of a contact. The last paragraph of the opinion reads:
“Turning to the extrinsic evidence, nonexistence of a contract making revocation by Mrs. Menke after her husband’s death wrongful, was proved both by plaintiff and by defendants, and the case stands as a warning against dogmatic judicial declaration that a certain form necessarily expresses a certain reality.” (p.220.)
In the case of In re Estate of Tompkins, supra, a joint and mutual will was held to be contractual on its face because the language used clearly indicated the elements establishing the fact of an agreement by the testators as to the terms and provisions of their will and the intention that they each be bound. Although extrinsic evidence, tending to prove a contract, was received in Tompkins it was described as unnecessary for the reason the will was contractual on its face. As in Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276, the language used in the will supplied the evidence necessary to establish that the will was the product of a contract.
While disposing language in the instant will is quite similar to that used in the Tompkins will, contractual elements are not so clearly discernible, since an awkward use of the words, in particular “my,” is found in the Wade will, resulting from the unskilled efforts of the layman (Jacob) in attempting to reflect the expressions of the testators in the preprinted will form. Nevertheless, it cannot be said that any expresssion of the will is contrary to the agreement of the testators, as it was found by the trial court.
In the Wade will there is no language stating it to be contractual, nor does the language used supply with clarity the evidence of an underlying obligation. On the other hand, the facts, as found from uncontradicted evidence, show that Erman and Wilma bargained until they reached a definite agreement as to the disposition of their property, and they expressed such disposition in the identical portions agreed upon in their joint and mutual will.
In conclusion we find the joint and mutual will of Erman and Wilma Wade was contractual and the trial court erred in concluding otherwise.
The judgment is reversed. | [
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|
The opinion of the court was delivered by
Fromme, J.:
Frank Basker was convicted by a jury of attempted robbery in the first degree. His conviction was upheld by this court in State v. Basker, 198 Kan. 242, 424 P. 2d 535. The present appeal is from post conviction proceedings pursuant to K. S. A. 60-1507. Frank Basker was present at the proceedings. He was represented by counsel. His motion to set aside sentence was denied by the trial court upon proper findings.
The first three points now raised were considered and rejected in the direct appeal. These points presented no substantial question of law or issue of fact to the trial court. They will not be reconsidered by this court. (Carter v. State, 199 Kan. 290, 428 P. 2d 758.)
Appellant claims he was deprived of a speedy trial although it does not appear who caused the delay. He was bound over for trial on June 20, 1964 (during the June term). His trial commenced February 2,1965 (during the December term). Only the September term of court intervened. The requirements of K. S. A. 62-1431 were met and appellant was not deprived of a speedy trial. (State v. Williams, 187 Kan. 629, 360 P. 2d 11.)
The final point specified pursuant to Rule No. 6 (cl) of the Su preme Court (197 Kan. lxi) was neither briefed nor argued. It is deemed abandoned. (Tate v. State, 196 Kan. 435, 411 P. 2d 661.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an interpleader action by Skelly Oil Company (plaintiff-appellee), the purchaser of liquid hydrocarbons produced from a well located on a unitized leasehold, to construe an oil and gas lease and particularly the pooling or unitization clause therein which provides for the pooling of “gas rights only” where both natural gas and liquid hydrocarbons are produced from the same well.
The question presented is whether the ownership of the royalty interest in the liquid hydrocarbons is in the owners of the land on which the well is located or is in all of the owners of the pooled gas unit in proportion to their respective acreage contribution — in other words, whether the liquid produced is gas under the terms of the lease and therefore unitized, or is oil and not unitized or pooled.
The facts are not in dispute and are based upon the findings made by the trial court.
Four separate oil and gas leases were executed covering separate lands in Kingman County, Kansas, each of which contained a pooling or unitization clause which granted the lessee the right "to pool or consolidate this lease, the land covered by it, or any part thereof, with any other land, lease, leases, mineral estates, or parts thereof, but only as to the gas rights hereunder (excluding casinghead gas produced from oil wells) to form one or more gas operating units of not more than” 180 acres each.
The four leases in question were unitized pursuant to the pooling clause by a declaration instrument dated August 22, 1957, which was duly recorded in the register of deeds office of Kingman County, Kansas.
The unit consists of approximately 180 acres, and on the 22nd day of March, 1957, a well was completed on the Savage lease tract in such unit by the operator thereof, Petroleum, Inc. The owners of the Savage tract are the appellants herein. The well and the unit in question were located within the confines of the Spivey-Grabs Field, which is the subject of a basic proration order entered by the state corporation commission of the state of Kansas.
The trial court found:
“4. Defendant Petroleum, Inc., is the owner of a 1% interest and is the operator of said unit.
“5. Pursuant to the provisions of the Basic Proration Order for the SpiveyGrabs Field, an initial gas-oil ratio test was taken on the above described well known as the Savage No. I well, which test showed a producing ratio of hydrocarbons from said well of 93,617 cubic feet of gas per barrel of oil produced. Initial production of the Savage No. 1 well commenced on August 14, 1957, and during the life of said well the gas-oil ratio thereof increased and as of January 1, 1967, the said gas-oil ratio of said well was in excess of 200,000 cubic feet of gas per barrel of oil or liquid hydrocarbons.
“6. The Savage No. 1 well is a gas well, by definition under the Basic Pro-ration Order for the Spivey-Grabs Field, having had at all times a producig gas-oil ratio in excess of 15,000 to one. In addition, the economic value of the gas production has greatly exceeded that of the liquid production.
“7. There is no separate oil zone existing in the Savage No. 1 well, and liquids produced from said well are associated with the gas in the upper portion of the Mississippian Formation, and such liquids are produced along with the gas and are transported to the producing formation to the well bore and to the wellhead by the differential in pressure existing in the reservoir and at the wellhead, which causes die flowing of gas through the formation and to the wellhead. No pumping equipment or other artificial or mechanical means of lifting or producing the fluids exists or is used on the well, and the gas cannot be produced without carrying with it the associated liquids.
“8. The liquids are separated from the gas on the lease premises by means of a high pressure separator and water is then separated from the liquid hydrocarbons by means of a heater-treater.
“9. The gravity of the liquids as of the date of the hearing of the case was 47°, which is in the condensate range and in excess of the gravity of crude oil, such liquids being associated with and a component part of the gas in the reservoir.
“10. All of the acreage in the Savage Unit is productive of gas and liquid hydrocarbons in approximately the same gas-oil ratio, and a well drilled anywhere on the unit would be a well substantially identical to the Savage No. 1 well. All of the lands in said unit have been attributed to the Savage well for allowable purposes by order of the State Corporation Commission.
“11. Gas and liquid hydrocarbons have been produced or drained from all of the tracts in the unit into the well bore of the Savage No. 1 well.
“12. Considering the amount of recoverable liquids in the reservoir under the Savage Unit and the cost of drilling, completing and equipping the well in the Mississippian Formation on the Savage Unit, it is uneconomic for the operator of the unit, or any other operator, to drill an additional well or wells on the non-drillsite tracts for the purpose of recovering separately by tract, oil or liquid hydrocarbons existing under such non-drillsite tracts.
“13. The non-drillsite mineral owners have executed a division order for the liquids on a unit basis, tendered to them by the original pipeline purchaser, Skelly Oil Company. The mineral owner under the drillsite (Savage Lease) has refused to execute such division order providing for division of liquids on a unit basis. Proceeds accruing to the royalty interest have been held in suspense by the pipeline purchasers.”
The trial court further found that it was a common situation for wells in the area to produce both gas and liquids. It thereupon determined the proportionate royalty interest of the owners of the various leased tracts in the unit and concluded in part as follows:
“Conclusions of Law
“1. The Savage No. 1 well is now, and has been during its producing life, a gas well.
“2. Under ordinary circumstances the owner of the minerals under the well-site is entitled to the full share of the royalty from oil produced from this land. Although in this case the owners of the minerals under the Savage No. 1 have not specifically agreed to pool oil and liquid hydrocarbons produced from this well, neither have they specifically agreed that such oil and liquid hydrocarbons should not be pooled.
“3. When the Savage No. 1 well was brought in as a producer within the legally described field limits of the Spivey-Grabs Pool, which was governed by the provisions of the Basic Proration Order for the Spivey-Grabs Field as entered by the State Corporation Commission, and when such well was officially tested and classified as a gas well by the Commission, then the lease contracts including the pooling agreements must be construed in the light of and as affected by regulations of the Corporation Commission.
“4. The fact that the drillsite oil and gas lease contains no separate pooling clause permitting the pooling of oil from an oil well, does not preclude the pooling of liquids produced in conjunction with and as a by-product of the production of gas from the gas unit.
“5. Considering the physical characteristics of the liquids involved, and the fact that the subject well is a gas well and that the liquids are associated with the gas and recovered and produced by reason of the operation of said well as a gas well, and the same must be separated from the gas only after hydrocarbons have been produced at the wellhead, such liquids should be deemed to be a part of the gas and should be considered as the proceeds from the gas for the purpose of payment of royalty and should be distributed on a unit basis.
“6. The pooling clause under the drillsite Savage Lease in the last sentence thereof, does not specifically limit the spreading of royalty or production from the subject well to gas alone, but permits the distribution of ‘royalty on production’ from the unit to the separate tracts in the unit area on an acreage basis.
“7. Since all tracts contain liquids, as well as gas, and the various mineral owners are thus contributing liquids under their lands to the production of the Savage well, an equitable construction of the pooling clauses, made in light of the facts and contentions existing at the time of the execution of the leases, requires a spreading of the royalty proceeds of not only the gas, but also the liquids from the Savage well.
“8. Royalty from the sale of the oil and liquid hydrocarbons from the Savage No. 1 well belong to and should be distributed to the persons and in the proportion set forth above in paragraph 18 of Findings of fact. [The distribution is based on the proportionate acreage contributed by the various landowners to the unitized tract.]”
The trial court thereupon entered judgment for the respective parties distributing the proceeds from the sale of liquid hydrocarbons produced, as to the royalty interest, to the mineral owners under all of the tracts in proportion to the contributed acreage under each tract in the unit.
Petroleum, Inc., in its answer says:
“This case presents a novel question of law, not previously decided by the Supreme Court of Kansas, as to whether the production of oil from the Savage Unit should be distributed to the entire royalty ownership under the unit or only to the royalty owner under the drill site lease.”
The lease here in question contained a pooling agreement granting the lessee the right to consolidate the lease in question to form "one or more gas operating units.” The right to pool the lease was limited in that the leasing agreement authorized only the pooling of “gas rights” granted therein. We are confronted with the proposition, however, that nowhere in the lease is the term “gas rights” defined.
The lease further provided:
“The entire acreage pooled into a gas unit, shall be treated for all purposes, except payment of royalties on production from the pooled unit, as if it were included in this lease. In lieu of the royalties herein provided, lessor shall receive on production from the unit so pooled only such portion of the royalty stipulated herein as the amount of the acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.” (Emphasis added.)
The gas from the unit in question was sold to the Kansas Power and Light Company at a quoted rate per thousand cubic feet. The liquid produced was sold to the Skelly Oil Company at a quoted rate per barrel. The landowners in the unit, other than the appellants who are the drillsite landowners, claim the liquid produced is gas. The appellants, relying upon the foregoing language in the lease, and in particular the emphasized portion, contend the liquid produced is oil or liquid hydrocarbons and that this product was not unitized.
The basic consideration concerns the meaning of the terms used in the lease and the intent of the parties who executed the leases in question. The appellants argue in construing the lease, the court must apply the commonly-known and used meaning of the words rather than the scientific or technical meaning. (Citing, Wolf v. Blackwell Oil & Gas Co., 77 Okla. 81, 186 Pac. 484; and 17 Am. Jur. 2d, Contracts, § 252, p. 644.)
They also rely upon 17 Am. Jur. 2d, Contracts, § 247, p. 637; and Collier v. Monger, 75 Kan. 550, 89 Pac. 1011, for the proposition that the language in an oil and gas contract will be given its ordinary and commonly understood meaning where no reason appears for doing otherwise.
The appellants rely upon the commonly accepted meaning of “gas” and “oil” and quote from various authorities in other jurisdictions discussing such definitions. Most of the cases upon which the appellants rely arise under the royalty clauses of oil and gas leases wherein the courts were attempting to determine whether the oil or gas royalty clauses should be applied. For example, Vernon v. Union Oil Company of California, 220 F. 2d 441 (5th Cir. 1959) involved the shut-in royalty clause, and more particularly whether the payment of shut-in royalty was countenanced by the lease referring to a well “producing gas only” where the well in question produced some liquid condensate.
The authorities touching the point here under consideration are scant. The decision is complicated by the fact that the liquid hydrocarbons with which we are concerned in the instant case change from the gaseous state to the liquid state at some point in the production process prior to sale.
Distillate is spoken of in Volume 1 of The Law of Oil and Gas Leases by Earl A. Brown (2nd Ed.) in Section 6.07 as follows:
“Distillate or condensate (the terms are synonymous) is a liquid produced from gas wells, as distinguished from casinghead gas which is a saturated gas produced from oil wells. It is ordinarily found in the deeper sands, where pressures and temperatures are greater than those which occur in the shallower sands. Considerable amounts of this liquid are obtained from large gas wells producing from deeper formations, — ten, twelve to fourteen thousand feet in depth and even deeper. Of course, no question as to payment of royalty on this product exists under the later lease forms where the royalty clauses are specific. The problem arises under those leases which provide for royalties only on oil and gas, and perhaps casinghead gas.
“Distillate or condensate ordinarily exists in a gaseous state in the reservoir. This reservoir condition is occasioned by high temperatures and great pressures. Upon reduction of the temperature and release of the pressure by ordinary production methods the distillate liquefies and falls out of the gas in the separators connected with the mouth of the well. More liquid is obtained when the resultant gas is treated in a processing plant. The question is: ‘Shall the distillate be classified as oil, or does it go with the “gas and gas rights”?’ ”
A noted author of the Oklahoma Bar in his work on oil and gas speaks of distillate in the following manner:
“The terms ‘distillate,’ ‘condensate,’ and ‘natural gasoline’ are commonly used interchangeably to describe the liquid hydrocarbons which may be extracted from natural gas produced from a well which produces gas only and does not produce crude oil. Such substance is to be distinguished from casing-head gas. Although there may not be a well defined distinction between distillate and casinghead gas from the standpoint of chemical composition, there is a well defined distinction between such substances from the standpoint of construction of mineral deeds and oil and gas leases. Casinghead gas is gas which is produced from an oil well, whereas natural gas and its constituent wet elements, distillate, are produced from a gas well.
“Most of the cases which have involved disputes over distillate are cases in which it has been necessary to identify distillate with some other substance. When the first disputes arose, the oil and gas leases in common use contained no special provision for distillate. The royalty clauses usually contained provisions for oil, simply, and for gas, simply. When gas wells were drilled which produced distillate, it became necessary for the courts to construe the oil and gas lease and to arrive at the intention of the parties on a subject which they did not have specifically in mind. Although there is a lack of uniformity among the states in the solutions found to a similar problem involving casinghead gas, there is considerable uniformity in the results of cases which have involved distillate. It has been generally recognized in the various jurisdictions with decisions on tire subject that distillate is not oil but is a component of natural gas and that title to the gas carries with it the title to all of its components. To the extent that there are variations within such general pattern, the variations are largely the result of peculiarities of the royalty clause under consideration.” (3 Kuntz, Law of Oil & Gas, § 41.3 [b], pp. 345, 346.)
The work of Leo J. Hoffman, a member of the Texas Bar, entitled “Voluntary Pooling and Unitization,” contains a section “Defining Pooled Substances” in which the following is stated:
“. . . Moreover, if there is a question as to whether the production from the particular well on the unit is a pooled substance there is likewise a question as to whether the royalties on that production belong entirely to the owner of the tract on which the well is located or whether such royalties should be apportioned among all of the royalty owners in the unit. Probably most of the lease pooling clauses in common use provide for separate pooling as to oil and gas, but make no serious attempt to define the two pooled susbtances. In the usual case this poses no serious problem since most wells can be classified with reasonable certainty as being producers of one substance or the other. But the occasional borderline well can be exceedingly troublesome in this respect, as, for example, where what is ostensibly a gas well also produces large quantities of oil and distillate. In general it may safely be said that as a matter of practical administration all of the production from an oil well, including the gas and distillate which may incidentally be produced from the well, should be treated as oil where oil rights have been pooled. Similarly, all of the production from a gas well, including the oil and distillate, if any, which may incidentally be produced from the well, should be treated as gas where gas rights have been pooled. In case of doubt as to whether the particular well is an oil well or gas well the parties should generally be guided by the classification of the well which is made by the state conservation agency for purposes of regulation. However, such classification will not govern if the agreement of the parties provides otherwise for purposes of pooling. . . .” (pp. 132, 133.) (Emphasis added.)
Analogous to the present case on factual grounds is Blocker v. Christie, Mitchell & Mitchell Co., 340 S. W. 2d 320 (Tex. Civ. App. 1960). There the land of the mineral owner was pooled under an agreement with other lands, which restricted the right to pool gas to a situation where the gas zone showed an oil-gas ratio test of one barrel or less per 10,000 cubic feet of gas. The agreement also provided that the acreage covered by the lease should not be pooled with other acreage as to oil. The drillsite mineral owner claimed that he was entitled to be paid for all of the liquids referred to in the opinion as condensate or distillate, produced from gas wells on his land, and the lessee appears to have claimed that such production should be ratably shared with those in the gas unit. The evidence disclosed that the liquids involved looked like oil, tasted like oil, smelled like oil, and that they were stored and sold like oil, although the gravity of the liquid was considerably higher than that of frac oil. The court, after quoting the Hoffman citation set out above, stated as follows:
“. . . We think the above to be the proper rule, and, under the terms of the pooling agreement between the parties and in view of the evidence, should be applied in the instant case.
“We conclude that the condensate or distillate, under the record before us, was a constituent element of gas and under the pooling agreement payment therefor should be made proportionately to those with interest in the gas pool.” (pp. 321, 322.)
The appellants attempt to distinguish the Blocker case on the ground that it is a Texas case where the “in place” theory as to minerals is adopted. Oil and gas in Texas are subject to sale “in place.” Therefore, the form of the substance as it exists “in place” determines its classification.
In Kansas the law is well settled that an oil and gas lease conveys no interest in real estate or the minerals in place, but that the lease is merely a license to explore. (Shields v. Fink, Executrix, 190 Kan. 17, 372 P. 2d 252; Denver National Bank v. State Commission of Revenue & Taxation, 176 Kan. 617, 272 P. 2d 1070; and State, ex rel., v. Board of Regents, 176 Kan. 179, 269 P. 2d 425.)
Based upon this distinction the appellants argue the royalty provisions of the oil and gas lease here in question must apply to the hydrocarbons produced, and not the “in place” theory. The appellants pursue this point by citing Carlock v. Krug, 151 Kan. 407, 99 P. 2d 858, for the proposition that liquid hydrocarbons belong to the owners of the land. There, however, the court was concerned with a lease on a quarter section of land where there was a subsequent division of ownership. The court held the owner of the separate parcel of land upon which the well was drilled, in the absence of specific provision or agreement to the contrary, was entitled to all of the royalties on oil production therefrom. In the opinion the court stated the Kansas rule to be that the owner of the land and those claiming under him own all of the oil produced from wells located on the land, and that owners of adjoining tracts must protect themselves by development of their own land.
Clearly, the Carlock case does not involve pooling rights under oil and gas leases, and as a consequence has little bearing on the question as to whether “gas rights” should include the associated liquids removed from the gas away from the well bore in the instant case.
The Texas court in Blocker refers to the liquid production as condensate or distillate, and it is clear from the facts in the instant case that the liquid hydrocarbons here in question are condensate or distillate, having a specific gravity higher than crude oil.
We see no valid grounds to distinguish the Blocker case which was decided on the “in place” theory in Texas from the facts in the instant case, even though Kansas does not adopt such theory. On the conceded facts in the instant case the production of the well on the Savage unit was captured at the wellhead in the gaseous form, and it was not until the associated liquids were separated from the gas away from the well bore that liquid hydrocarbons were available for sale. (See, Matzen v. Hugoton Production Co., 182 Kan. 456, 321 P. 2d 576.)
Based upon the facts in this case, as shown by the findings of the trial court, we are persuaded by the foregoing authorities and hold that “gas rights” as used in the Savage lease should be deemed to include the associated liquids produced as a constituent element with the gas.
The unitization clause in the Savage lease by inference permits the inclusion of liquid hydrocarbons as being within the meaning of the term “gas rights.”
The only exclusion from the term “gas rights” is casinghead gas produced from oil wells. Nothing else limits such term. In the last sentence of the pooling clause of the lease reference is made to “royalties” on “production” from the unit. Had the parties intended to exclude associated liquids produced from a gas well this sentence, which spreads the royalty on a unit basis, could have been clarified.
The foregoing construction of the lease is further fortified by a disclosure in the lease that the parties were all aware that a well capable of producing natural gas in the Spivey-Grabs Field would also produce condensate, distillate and other gaseous substances. This is indicated by the shut-in provision under the royalty clause of the lease which provides:
“. . . (c) if at any time while there is a gas well or wells on the above land (and for the purposes of this clause [c] the term ‘gas well’ shall include wells capable of producing natural gas, condensate, distillate or any gaseous substance and wells classified as gas wells by any governmental authority) such well or wells are shut in, . .
The appellants argue the royalty clause in the lease which provides that royalties should be paid “(a) on oil, and on other liquid hydrocarbons saved at the well” indicates an intention that liquid hydrocarbons are to be classified as oil. This is answered by a succeeding provision concerning gas to the effect that royalties should be paid “(b) on gas, including casinghead gas and all gaseous substances.” (Emphasis added.)
If a written contract is actually ambiguous concerning a specific matter in the agreement, such as the meaning of “gas rights” used herein, facts and circumstances existing prior to and contemporaneously with the execution of such contracts are competent to clarify the intent and purpose of the contract in this regard, but not for the purpose of varying and nullifying its clear and positive provisions. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; and Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132.)
In this case all the leases in the unit were given and granted on lands within the legally described field limits of the Spivey-Grabs Pool in Kingman County, Kansas, which was governed by the provisions of the basic proration order for the Spivey-Grabs Field as entered by the state corporation commission of the state of Kansas. This order recognized that gas and oil or other liquids were associated together in the same Mississippian Reservoir, and that a need existed for classifying wells in the area. Had it therefore been desired and required by the lessors that liquids, known to exist in the area, be excluded from the term “gas rights” (as casinghead gas was), this could easily have been accomplished, but no such provisions were added.
The facts in the instant case disclose that liquid hydrocarbons existed along with the gas under all of the tracts in the unit, and that they have been and would continue to be produced into the well bore of the Savage No. 1 well. The fact that only small amounts of recoverable liquids were produced made it uneconomic for the operator of the unit, or any other operator, to drill any additional well or wells on the non-drillsite tracts for the purpose of recovering separately by tract oil or liquid hydrocarbons existing under such non-drillsite tracts. Obviously, the non-drillsite mineral owners would have no adequate remedy to protect themselves from drainage, if they did not share in the production of the associated liquids produced from the Savage well. The lands in the unit have been fully developed for gas purposes, and any attempt by the lessees of the non-drillsite tracts in the unit to cancel those leases for violation of the implied covenant to further develop would fail, con sidering the oil alone, because it would not be economic to drill a further well for this purpose. (Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810.) Furthermore, if the present lessee should release the non-drillsite leases as to the oil rights only, the economic failure to warrant further drilling continues to exist, and anyone drilling a well on the non-drillsite tracts could not produce the gas, since those rights belong to the present lease owners.
Equity thus suggests a construction of the lease which would spread the royalties from liquid hydrocarbons ratably to all of the parties having an interest in the gas unit.
In conclusion we hold the condensate or distillate, on the admitted facts before us, was a constituent element of the gas produced and under the pooling clause of the lease payment therefor should be made proportionately to all of the parties having an interest in the gas unit.
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The opinion of the court was delivered by
Price, C. J.:
Defendant appeals from a conviction of murder in the first degree.
Only one contention is made — that the trial court erred in permitting the testimony of two of the state’s witnesses given at the preliminary examinaion to be read to the jury at the trial of the case.
A brief summary of the facts will bring the sole question into clear focus.
On a night in December 1966 one Jerry Peoples, an inmate of the Kansas State Industrial Reformatory, was stabbed to death in his cell. Defendant, Basil Terry, also an inmate of the institution, was charged with the offense. A preliminary examination was held on January 10, 1967. Defendant was present in person and represented by Mr. E. Dexter Galloway, an experienced member of the Reno county bar. A certified shorthand reporter was present and reported the proceedings. Two of the state’s witnesses were Floyd Henry Law and Leroy Walburn, who, on the night in question, also were inmates of the institution and cellmates of defendant. Their testimony of events immediately leading up to the stabbing need not be detailed. It is sufficient to say that according to them it was defendant who committed the act.
Both Law and Walburn were cross-examined extensively by defendant’s counsel.
At the conclusion of the hearing defendant was bound over to the district court for trial.
The trial was held in April 1967, and Mr. Galloway continued to represent defendant.
During the course of the trial Law and Walburn were called as witnesses for the state. Although they were granted immunity from prosecution — each of them flatly refused to testify — either for the state or defendant.
After laying a proper foundation the state — over objection of defendant — introduced the official transcript of the testimony of Law and Walburn given at the preliminary examination — and the reporter who took down the testimony read it — both direct and cross-examination — to the jury.
In addition to their testimony the state also introduced evidence of an oral confession made by defendant to the investigating officers in which he described in detail the events and circumstances of the fatal stabbing. No complaint as to this evidence is made in this appeal.
The jury returned a verdict of guilty of murder in the first degree and fixed the penalty at life imprisonment.
Defendant’s motion for a new trial — containing numerous grounds —was overruled and sentence was imposed.
Subsequently, Mr. Lane H. Cronhardt, an experienced member of the Reno county bar, was appointed to represent defendant in this appeal. In his brief he states that he has studied the trial transcript and has determined that only one point has merit— that being the issue involving the introduction at the trial of the testimony of Law and Walburn given at the preliminary examination.
The Sixth Amendment of the United States constitution provides that—
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; . .
Section 10 of the Bill of Rights of the Kansas constitution provides that—
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, . .
The basic and primary reason underlying the constitutional “confrontation” rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him (Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065).
The authorities — both federal and state — however, are in general agreement as to an exception to the confrontation requirement— that is — where a witness is unavailable and has given testimony at a previous judicial proceeding against the same defendant which was subject to cross-examination by that defendant — the testimony of such witness, may, upon a proper showing and foundation — be introduced at the subsequent proceeding. The exception has been explained as arising from practical necessity and justified on the ground that the right o£ cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement (Barber v. Page, 390 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 [April 23, 1968]; C. J. S. Criminal Law §892, p. 506 et seq.; 21 Am. Jur. 2d, Criminal Law § 343, p. 371; The State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468; The State v. Harmon, 70 Kan. 476, 78 Pac. 805; The State v. Simmons, 78 Kan. 852, 98 Pac. 277; The State v. Stewart, 85 Kan. 404, 116 Pac. 489; State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168; State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Guthrie, 192 Kan. 659, 391 P. 2d 95; State v. Lesco, 194 Kan. 555, 400 P. 2d 695, cert. den. 382 U. S. 1015, 15 L. Ed. 2d 529, 86 S. Ct. 628).
In several of the cited cases it was the testimony given at a preliminary examination which was later admitted at the trial. For example—see the Bonskowsld case at pages 728 and 729. Also, see, State v. Brown, above, Syl. 6.
Even though the testimony given at a prior trial or a preliminary examination was subject to cross-examination by a defendant — the authorities are in accord that in order for it to be admissible in a subsequent criminal proceeding it must be shown that the witness who gave such testimony is unavailable at the subsequent proceeding (Barber v. Page, above).
This leads to the question concerning when and under what circumstances is a witness “unavailable.”
In The State v. Stewart, above, it was held—
“The testimony of a witness, voluntarily given in the preliminary examination of the charge on which the accused is on trial, is admissible in evidence where the accused had full opportunity to cross-examine the witness and the direct testimony of the witness had become absolutely unavailable to a party by reason of such witness claiming the statutory privilege of withholding his direct testimony because of being the husband of the accused.” (Syl. 6.)
and in the opinion it was said—
“In this instance the witness was living and was present at the trial, but he claimed his statutory privilege and declined to testify against his wife. . . . He had voluntarily testified in the preliminary examination in her presence and where the accused was given full opportunity to cross-examine him and to test the accuracy and truth of his statements. That testimony had been reduced to writing, and thus preserved and perpetuated for future use. It was voluntarily given by a competent witness. It was legal evidence when given. It was a closed and completed thing, capable of reproduction, and was available in subsequent trials in cases where it was the best evidence obtainable. His refusal to testify viva voce at the trial made the information which he had formerly given as inaccessible to plaintiff as if he had been dead or out of the jurisdiction of the court.
“It is sometimes said that the testimony of a witness at a former trial cannot be read if he is present at the trial, but its admissibility does not depend so much on the presence or availability of the witness as it does on the availability of the testimony; and the testimony of Stewart was just as unavailable as if he had walked over the state line where process could not be served upon him.” (pp. 414, 415.)
In People v. Pickett, 339 Mich. 294, 63 N. W. 2d 681, reported at 45 A. L. R. 2d 1341, a witness who had testified at defendant’s preliminary examination and was subject to cross-examination — although granted immunity — refused to testify at the trial on grounds of self-incrimination. The use of the prior testimony was held proper upon the ground that, having refused to testify, the witness was just as “unavailable” as if he had been absent from the jurisdiction. (Certiorari was denied at 349 U. S, 937, 99 L. Ed. 1266, 75 S. Ct. 781.) Also see the Annotation at 45 A. L. R. 2d 1354.
In view of the rules laid down in the many decisions, discussion of K. S. A. 60-459 and 60-460 as they relate to the “unavailability of a witness” would serve no purpose. And, under the facts — it is unnecessary to discuss defendant’s contention that a preliminary examination is not a “trial” (Coats v. State, 196 Kan. 607, 413 P. 2d 81).
We now apply the foregoing rules to the facts before us:
Both Law and Walburn testified under oath at defendant’s preliminary examination. Defendant was present and represented by counsel. Each of the witnesses was cross-examined extensively. A stenographic record of the testimony was made and preserved. At the trial — although granted immunity — each flatly refused to testify. Under the circumstances, therefore, each of these witnesses was just as “unavailable” as though his physical presence could not have been procured — for, as a practical matter — his testimony was unavailable — thus bringing the matter clearly within the exception to the constitutional confrontation rule.
The trial court did not err in admitting the testimony of witnesses Law and Walburn given at the preliminary examination. The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The plaintiffs-appellants describe themselves as residents and taxpayers of the City of Kansas City, Kansas, in their petition and set out three causes of action against defendants-appellees, Joseph H. McDowell, Earl B. Swarner and Joseph P. Regan, respectively, the Mayor, Finance Commissioner and Street Commissioner of the City of Kansas City, Kansas. Issues were joined by the defendants’ answer.
Defendants allege that plaintiffs failed to state a claim against defendants upon which relief could be granted and that plaintiffs have no capacity to sue. Specific answers to the allegations of the three counts of the petition were also incorporated in the answer.
Depositions of three plaintiffs and two defendants were taken by the opposing parties.
Thereafter, a motion by plaintiffs for summary judgment as to Counts II and III and a motion by defendants to dismiss as to all counts were heard by the trial court. Plaintiffs’ motion for summary judgment was overruled. As authorized by K. S. A. 60-212 (b) (amended by Laws of 1965, Chapter 354, Section 1, now K. S. A. 1968 Supp. 60-212 [b]), defendants’ motion to dismiss apparently was treated as a motion for summary judgment and sustained as to all three counts of plaintiffs’ petition.
The trial court filed a memorandum decision which reads in pertinent part as follows:
“1. That with respect to each of these counts, there is a failure to state a claim upon which relief can be granted.
“2. That there is no authority in the plaintiffs or any of them as taxpayers or otherwise, to maintain the action with respect to any of the three counts.
“3. None of the plaintiffs have any special interest as private citizens or taxpayers with respect to the matters alleged in any one of the three counts which are not enjoyed by the public generally.
“With respect to Count I, there was some indication on the part of the plaintiffs that there should be further discovery before passing upon the defendants’ motion to dismiss. The court finds that it is apparent on the face of the petition that further discovery would not supply any additional facts which could possibly add to the merit of any claim on the part of these plaintiffs.
“The motion of the defendants to dismiss is sustained, and the motion for summary judgment filed on behalf of the plaintiffs with respect to Counts II and III is overruled.”
Thereafter, plaintiffs perfected this appeal urging as error each finding of the trial court and as a fourth point claim error in overruling plaintiffs’ motion for an order requiring defendants to pay for that portion of the record on appeal unnecessarily included by them in the joint designation agreed to by the parties.
In Count I plaintiffs allege defendants willfully, wantonly and fraudulently used tax money for their own gain with respect to the institution by the city, as sponsor, of a summer program of the Neighborhood Youth Corps. The program was operated for twelve weeks during June, July and August of 1965, as a result of a contract between the City and the United States Department of Labor, authorized by the Economic Opportunity Act, enacted by Congress in 1964.
Plaintiffs allege defendants appointed Frank Cottita to administer the youth program and that as administrator, under the direction and supervision of defendants, he put seventy-seven ineligible persons on the payroll for the purpose of strengthening defendants’ political machine and for defendants’ own political aggrandizement. Plaintiffs further allege in Count I that an investigation by the Federal Government revealed the seventy-seven persons to be ineligible by reason of failure to qualify as impoverished persons and, as a result of the investigation, defendants agreed to pay back some $7,300 to the Federal Government out of city tax funds.
As to Count I plaintiffs pray that defendants be required to pay back $7,300 and be assessed $25,000 each for exemplary damages to be paid to the city treasury.
Counts II and III of the petition allege defendants unlawfully adopted charter ordinances concerning salaries and pensions.
In Count II plaintiffs pray that defendants be required to pay back to the city treasury the amounts collected due to raises in salaries resulting from the alleged unlawful adoption of a charter ordinance raising their salaries.
In Count III plaintiffs seek to enjoin defendants from collecting their pensions and also pray that those portions of the ordinance creating pensions for elected officials be declared unconstitutional.
In all three counts, plaintiffs rely primarily on alleged violations of specific statutes. Although plaintiffs pray for relief in the form of damages, recovery of money and injunction, the allegations of the petition force the conclusion that the action generally is in the nature of quo warranto seeking to oust the defendants from exercising alleged unwarranted power. In their brief plaintiffs are indefinite as to their position. They assert capacity to sue under either, or both, quo warranto (K. S. A. 60-1203) or as aggrieved taxpayers (K. S. A. 60-907).
We shall consider first whether there was a failure to state a claim upon which relief could be granted in Counts I and II.
Plaintiffs’ argue that, as a general rule, a public official is liable for moneys fraudulently misapplied, misappropriated, or lost. (43 Am. Jur., Public Officers, § 308, pp. 112, 113.) They cite the case of Joint Consolidated School Dist. No. 2 v. Johnson, 163 Kan. 202, 181 P. 2d 504, to show that the general rule has been recognized and applied in Kansas. Plaintiffs are entirely correct in this assertion, however, the question here is whether the proper remedy has been pursued.
The Johnson case, cited by plaintiffs, involves an action filed pursuant to the provisions of G. S. 1943 Supp. 72-1016 (now K. S. A. 72-1016). The statute mentioned provides a means for recovery in the event of the breach of any condition of the bond of a treasurer of a common-school district. The statute specifically provides that the county superintendent shall, or any qualified voter of the district may, institute an action to recover on the bond if the director of the school district shall neglect or refuse to prosecute the action. In the Johnson case it was held that, notwithstanding the rule which precludes individuals generally from maintaining suits questioning the action of public officials, there can be no doubt but that the legislature has power to grant them that privilege either singly or collectively, as was done in G. S. 1943 Supp. 72-1016. G. S. 1935, 60-1121 (now K. S. A. 60-907) providing injunctive relief against illegal tax levies and other illegal acts of public official is pointed out as a further illustration of the right of the legislature to carve out an exception to the general rule.
The holding in Johnson, based upon the specific statutory authorization given a private citizen to maintain an action to recover moneys for the benefit of a school district, lends no support to plaintiffs with respect to Counts I and II.
Plaintiffs rely primarily on the provisions of K. S. A. 13-532 as establishing a basis for their causes of action in Counts I and II.
K. S. A. 13-532 reads as follows:
“All elected and appointed officers and employees of the city shall be personally liable to such city for the proper performance of his or her duty, as prescribed by this act and the ordinances of the city, or for the creation of any indebtedness contrary to the provisions of this act or the ordinances of the city, and for the misapplication of any funds, thing of value or property of such city committed to his or her care, or subject to his or her disposal, by vote or otherwise; and it shall be the duty of the city attorney to prosecute all violations of this section, in the name and on behalf of said city, on the written request of any three citizens and taxpayers of said city. Every officer who shall, with intent to defraud the city, approve, allow or pay any demand on the treasury not authorized by this act or by ordinance shall be liable to the city individually and on his official bond for the amount of the demand so illegally approved, allowed, or paid.”
A reading of the statute reveals a well-defined procedure for the recovery on behalf of a city of funds misapplied by a city official or employee. A remedy for the private citizen is provided by the mandatory duty imposed on the city attorney to prosecute an action on the written request of any three citizens who are taxpayers of the city. There is no allegation here of any request having been made of the city attorney, nor is any evidence to that effect adduced from depositions before the court. Plaintiffs suggest in their brief the city attorney should be prosecuting an action against, rather than defending, the defendant city officials. If the city attorney has failed to perform a statutory duty, plaintiffs have a remedy other than that sought to be maintained in this action.
From what has been said it is clear that plaintiffs have failed in Counts I and II to state a claim upon which relief could be granted based on the provisions of 13-532, supra.
In Count II of their petition plaintiffs also allege that defendants, in adopting an ordinance providing an increase in their salaries during the term of office for which they had been elected, violated the provisions of K. S. A. 13-1802. The caption and text read as follows:
“Holding other office. No member of the board of commissioners, or the mayor, shall hold any office of profit or trust under the laws of any state or the United States, or hold any county or other city office; nor shall the mayor or any commissioner ever be elected or appointed to any office created by, or the compensation of which was increased or fixed by, the board of commissioners, while he was a member thereof, until after the expiration of at least two years after he has ceased to be a member of said board.”
The purpose of this statute is twofold. First, it prohibits the mayor and commissioners from holding other public offices or positions. Second, it prohibits them from holding any office or position created by them, or a position for which the salary was increased by them, until the expiration of two years after serving as mayor or commissioners. There is nothing in the statute which prohibits the fixing or changing of salaries, either by raising or lowering, during the term of office then being served. Succeeding sections, K. S. A. 13-1803 and 1804, provide for the salaries of mayors and commissioners according to the classification and population of the various cities. With respect to smaller cities salaries are fixed by the provisions of 13-1803; as to larger cities only a maximum compensation for mayors and commissioners is fixed by 13-1803 and 13-1804. It follows that in the case of larger cities, such as Kansas City, Kansas, it is necessary that salaries, within the appropriate statutory limitation, be fixed by ordinances.
In the allegations of Count II we find no violation of K. S. A. 13-1802 which gives rise to a claim upon which relief could be granted as sought by plaintiffs.
In Count III plaintiffs again allege defendants violated the provisions of K. S. A. 13-1802 by adopting an ordinance providing a lifetime pension for themselves. Plaintiffs further allege the ordinance to be unconstitutional in that taxpayers were denied due process of law in being deprived of an opportunity to vote on the question.
In theff answer defendants explain that the two Charter Ordi nances (Nos. 3 and 4) attacked were amendments to the old city pension system, created and authorized by the provisions of Laws of 1939, Chapter 121, Section 1 (now K. S. A. 13-1497). Defendants point out that the old pension system was frozen in 1956 and since then new employees are enrolled in the Kansas Public Employees Retirement System rather than the old city pension system. The amendments to the old city pension system, contained in Charter Ordinances Nos. 3 and 4, applied to all city officers and employees (74) who were under the old city pension system. Defendants further allege the old city pension system is sound and similar to other municipal pension programs and that there is no threat of a drain of city funds by reason thereof, as claimed by plaintiffs. The charter ordinances in question were attached to the answer as exhibits.
As we have pointed out, K. S. A. 13-1802 prohibits mayors and commissioners from holding other public offices or positions while in office or from occupying, within two years, positions created by them, while serving as mayor or commissioners. We fail to see how the adoption of the ordinances in question falls within the prohibitions of 13-1802.
Plaintiffs further allege a deprivation of constitutional due process in the adoption of the ordinances attacked in Counts II and III.
The ordinances dealing with salaries and pensions were charter ordinances authorized by Art. 12, Sec. 5 [Cities’ powers of home rule] of the Constitution of the State of Kansas. The section referred to prescribes a procedure for a referendum on any charter ordinance on petition of ten percent of the electors of the city. (Art. 12, Sec. 5 [3].) No contention is made that the ordinances were not published in conformance with constitutional requirements. Apparently, no effort was made by plaintiffs or any other taxpayers to seek a referendum on the ordinances in question. No justifiable issue involving constitutional due process is made out by the allegations in either Counts II or III.
Our conclusion that plaintiffs have failed to state a claim in any of the three counts in their petition, upon which relief could be granted, compels an affirmance of the trial court’s dismissal of the action. Nevertheless, we shall briefly discuss other points raised on appeal.
We believe the trial court’s finding that none of the plaintiffs has any special interest as a private citizen or taxpayer, which is not enjoyed by the public generally, is fully supported by the record. The petition established the status of plaintiffs as merely that of residents and taxpayers of the city. In their depositions three of the plaintiffs (Fransham, Henderson and Wright), when interrogated concerning the subject, described their status as only that of taxpayers.
Capacity in quo warranto to challenge the acts of public officials does not arise from the fact a person or persons are taxpayers, the question is whether they suffered some peculiar personal injury separate and apart from all other taxpayers of the city alike.
The rule and rationale from which it stems were first stated in Craft v. Jackson Co., 5 Kan. (2nd Ed.) * 518:
“. . . If the injury is one that peculiarly affects a person, he has his right of action; if it affects the whole community alike, their remedy is by proceedings by the state through its appointed agencies.
“. . . To allow such citizen, on his own motion, in a case where his own interests are the same as that of every other person, to interfere with and litigate the acts of public officers, and compel them to a contest in the judicial tribunals of the county over each official act, would open the door to endless litigation, and a litigation over and about uncertain and contingent rights; for though the plaintiff is a tax-payer now, he may not be when the tax to pay these claims is levied. His interests may never be affected, nor does the petition show that they necessarily ever will be.
“. . . the private citizen, as such, cannot sue in his own name for e public injuries where his rights and interests are the same as those of every other member of the community.” (pp. * 521, * 522, * 524 and * 525.)
The rule has been consistently followed by this court down through Rowlands v. State, 187 Kan. 174, 354 P. 2d 674, which sets out a history of the rule and a series of adhering cases commencing with the decision in Craft. The rule was most recently recognized in Babcock v. City of Kansas City, 197 Kan. 610, 419 P. 2d 882, and Tripp v. Board of County Commissioners, 188 Kan. 438, 362 P. 2d 612.
Plaintiffs contend the rule has been altered to broaden the capacity of private individuals in quo warranto by the addition in K. S. A. 60-1203 of the words “resolution” and “ordinance” which were not included in the prior statute. (G. S. 1949, 60-1603.) The effect of the rearrangement of statutory language and the addition of the words “resolution” and “ordinance” in 60-1203, supra, was considered in Babcock v. City of Kansas City, supra.
In Babcock annexation ordinances were challenged. The action was held to be in effect an attack on the corporate integrity of the city and as such it was beyond the power of a private individual to maintain. Plaintiffs argue that, since the fact of corporate organization is admitted in the instant case, their right to maintain the action may be inferred from the holding in Babcock. The Babcock case did not deal with capacity to sue arising from a special interest other than that of the community in general. As a property owner, affected by the proposed annexation, Babcock probably met this requirement. He failed because his action was construed to be an attack on corporate integrity. The addition of the words “resolution” and “ordinance” in 60-1203, supra, to “office, franchise or corporation,” set out in the prior statute, was held only to broaden the field of the form of action and not to create any new rights in a private taxpayer. The requirement of a special interest not enjoyed by the public generally was not eliminated.
In commenting on 60-1203, supra, Judge Gard in his commentary says:
“It is still necessary in any event that a private person be able to show that he has a special and peculiar interest and right (or that there has been an invasion of right) not enjoyed or suffered by the public generally. . . .” (Gard, Kansas Code of Civil Procedure, Annotated, p. 674.)
Since plaintiffs neither allege nor make any claim of interest other than that of the whole community they have no capacity to maintain an action in quo warranto under the provisions of 60-1203.
In Count III, as we have pointed out, the claim of plaintiffs falls because of failure to state facts establishing an unlawful act under the provisions of 13-1802, supra. However, if plaintiffs had met the requirement of pleading an unlawful act then, viewed in the most favorable light, the pleading in Count III may have stated a cause of action under the provisions of 60-907, supra (formerly G. S. 1949, 60-1121) under which private taxpayers are authorized to attack illegal levies. In considering the statute mentioned, this court has declared many times that any person may maintain an action for injunctive relief under G. S. 1949, 60-1121 (now K. S. A. 60-907) when he alleges wrongful and illegal matters which affect his pocketbook by unlawfully increasing his taxes. (See Tripp v. Board of County Commissioners, supra, and cases cited therein.)
Lastly, plaintiffs claim error by the trial court in overruling their motion to tax some of the expense of the record against defendants. In announcing its ruling on the motion the trial court stated:
“The court, being fully advised in the premises, finds that the parties entered into a joint stipulation for designation on the 14th day of October, 1966; that prior to said date the court had before it plaintiffs’ motion for summary judgment and defendants’ motion to dismiss. Motion for summary judgment was overruled by the court, and motion to dismiss was sustained. The court having had before it all of the depositions heretofore taken prior to such ruling and were considered in such ruling, therefore, the court finds that plaintiffs’ motion to tax some of the expense of the record against the defendants be and the same should be overruled.”
As noted by the trial court, the record here was compiled on a joint designation of the parties. Even though some portions of the depositions included are irrelevant to the points on appeal, under the circumstances related, the trial court’s ruling cannot be said to amount to an abuse of discretion.
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|
The opinion of the court was delivered by
Fromme, J.:
The heirs at law of Olive I. Allen filed this action against the City of Kansas City, Kansas, Mayor Joseph H. McDowell and two police officers to recover damages for wrongful death. Olive I. Allen was shot and killed by the two officers in an attempt to apprehend her at 4:30 a. m. on March 29, 1967. The plaintiffs appeal from an order dismissing the action.
The petition was filed June 30, 1967. On July 18 the defendants filed both an answer and a motion. The motion was captioned “Motion for Summary Judgment.” The defendants moved the court to enter judgment for defendants on the ground the pleadings showed that they were entitled to judgment as a matter of law. On August 11 this motion was heard. No discovery proceedings had been attempted by any of the parties and no affidavits were filed. The court sustained the motion as to all defendants.
The provisions of our code relating to motions for summary judgment permit a defendant to file such a motion at any time after a claim is filed against him. (K. S. A. 60-256 (b).) However, such a motion contemplates consideration of all pleadings filed. Matters outside the pleadings may also be considered when established by affidavits, depositions, answers to interrogatories and requests for admissions. (K. S. A. 60-256 (c).) The parties did not present any matters to the court except the pleadings. Strictly speaking, the motion was not one for summary judgment. It was directed against the allegations of the petition. The motion appears to be a motion to dismiss under K. S. A. 1968 Supp. 60-212 (b) (6) and as such must be determined from the allegations of the petition. The motion in such case may be treated as the modern equivalent of a demurrer. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.) Questions of fact presented in the answer cannot be resolved on such, a motion and we limit our discussion to the petition which reads:
“Come now the plaintiffs and for this their cause of action against the defendants, allege and state:
“1. That the plaintiffs, Anna Webster, Lela Guyton and Della Lewis are citizens and residents of the State of Kansas; that the plaintiff Benjamin F. Gardner, is a citizen and resident of the State of Nebraska.
“2. That plaintiffs are the heirs at law of Olive I. Allen, deceased, and that as such they have sustained a loss by reason of her death, as hereinafter more fully appears.
“3. That the defendant, Joseph H. McDowell, was at all times mentioned herein, the Mayor of the City of Kansas City, Kansas, and a citizen and resident of the State of Kansas. That the City of Kansas City, Kansas is a municipal corporation within the State of Kansas, having the power to determine its local affairs and government under the Home Rule Amendment to the Constitution of the State of Kansas; upon which the plaintiffs caused a Notice and Claim to be served on the 29th day of May, 1967, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof as though fully set forth herein; that the defendants, Lloyd Rogers and Lawrence Stahl were at all times mentioned herein, citizens and residents of the State of Kansas, employed as Police Officers by the defendant, City.
“4. That on March 29, 1967, the decedent, Olive I. Allen was an elderly woman, some 70 years of age who was physically decrepit, and mentally confused.
“5. That prior to March 29, 1967, the defendant, McDowell personally assumed the active control and management of the Police Department of the defendant, City. That in so doing, he failed, refused and neglected to follow the advice of his Chief of Police even though said defendant McDowell had no experience whatever as a Police Officer or as an administrator or Chief of Police in charge of a Police Department.
“6. That at approximately 4:30 a. m. the morning of March 29, 1967, the defendant McDowell, under the conditions and circumstances herein alleged, sent the defendants Rogers and Stahl, two young Police Officers, wholly and totally untrained and inexperienced in dealing with individuals such as the decedent, Olive I. Allen, to apprehend her on the street in front of 630 Garfield Avenue, Kansas City, Kansas. That in so doing, the defendants Rogers and Stahl, carelessly, negligently, willfully and wantonly opened fire upon the person of Olive I. Allen with their high-powered Magnum revolvers at point blank range, to-wit: less than five feet; that said defendants’ willful and unlawful use of unnecessary force consisted of firing into Olive I. Allen’s body until it had been pierced through and through, at least eleven (11) times by the shattering impact of their high-velocity revolvers.
“7. From this furious fusillade, Olive I. Allen, mortally wounded, staggered several feet, fell and died on the sidewalk.
“8. That the acts herein described, with the results obtained, were committed by the defendants under color of the Ordinances of the City of Kansas City, Kansas and the laws of the State of Kansas; that they were unlawful and deprived the decedent, Olive I. Allen of her life and the plaintiffs of the society, companionship, comfort, protection, advice, and counsel of said decedent.
“9. That the defendant McDowell was careless, negligent and remiss in his duties as aforesaid in sending two young, untrained and inexperienced policemen, to-wit: the defendant Rogers and the defendant, Stahl to bring in the elderly Olive I. Allen; that in by-passing his chain of command in the Police Department and ignoring the experience and capabilities of the officers in charge of the Police Department, he made himself personally liable for all actions, carelessly or wrongfully done during the course of his direction, management and command of said Department. That had the said McDowell been operating the Police Department in accordance with established police procedures, he would have known that the said Olive I. Allen had been in a confused mental state for several days, and had been picked up by other members of the Police Department on the streets and the thoroughfares of the City of Kansas City, Kansas; that her mentally confused condition was readily apparent and she should have been taken to a home or committed to an institution for her own well being.
“10. That as a direct and proximate result of the careless, negligent, wrongful and unlawful acts herein alleged, the said Olive I. Allen met her death and the plaintiffs have lost the society, companionship, comfort, protection, advice, and counsel of the said Olive I. Allen: That the plaintiffs have sustained mental anguish, suffering and bereavement and incurred reasonable funeral expenses in the amount of Nine Hundred Eighty Four and 50/100 ($984.50) Dollars, all in and to their actual damages in the sum of Twenty-Five Thousand ($25,000.00) Dollars and the costs of this action.
“Wherefore, plaintiffs pray judgment against the defendants and each of them, in the sum of Twenty-Five Thousand ($25,000.00) Dollars and the costs of this action.”
It is apparent from the petition that the acts which form the basis for claims arose from the operation of the city police department. The operation of a police department by a city is a governmental function. Under the decisions of this court the city is immune from liability for the acts of its police officers. One of our recent cases so holding is Parker v. City of Hutchinson, supra. Similar decisions have been handed down by federal courts. (See Cuiksa v. City of Mansfield, 250 F. 2d 700, cert. den. 356 U. S. 937, 2 L. Ed. 2d 813, 78 S. Ct. 779.)
The plaintiffs urge that it is time for this court to abrogate the doctrine of immunity as applied to liability of a city for the acts of its officers and agents. A similar contention was urged upon this court and rejected in Parker v. City of Hutchinson, supra, where we said:
“The response of the legislatures in the states referred to above, as well as in other states where the courts have eroded or eliminated the immunity doctrine, leads us to believe that legislative action is preferable if municipal immunity is to be restricted or abolished.” (p. 153)
In further support of their contention plaintiffs say the Home Rule Amendment (Constitution of the State of Kansas, Art. 12, § 5.) furnishes a sound basis for abolition of the doctrine as applied to cities. This amendment empowers cities to exercise some measure of self determination in local governmental affairs. However, gen eral laws affecting cities remain subject to state legislation. We find nothing in the amendment, and plaintiffs cite no provision therein, which bears upon the subject of governmental immunity. The amendment specifically retains all general laws of statewide concern which are made uniformly applicable to all cities. Authority is reposed in the legislature to enact all laws of this nature. Cities remain subordinate branches of government and they will continue to perform governmental and political functions as agents of the sovereign state. It is the performance of these functions which is the basis for the grant of governmental immunity.
In McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73, it was said:
“. . . The state is the fountainhead of governmental immunity. The immunity of subordinate branches of the governent stems from the state. As long as a subordinate branch of the state performs governmental and political functions set up and imposed by the state, then such branch partakes of the immunity which inheres in state sovereignty. (Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.) . . .” (p. 511)
The Home Rule Amendment does not change the doctrine of governmental immunity of cities as found in the case law of Kansas.
The acts set forth in plaintiff’s petition occurred while the city was engaged in the performance of a governmental function. Governmental immunity applies to the city in such case and the petition fails to state a claim against the city upon which relief may be granted.
This does not determine the question raised by the motion as to the remaining defendants. Personal liability exists against police officers who needlessly and wantonly injure a person while making an arrest. (See 60 A. L. R. 2d Anno. 873 §§ 3, 4.)
As early as 1885 in Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490, it was held a petition stated a cause of action against Ole Admundson, city marshal of Lindsborg, for acts committed in his official capacity in arresting a person on the streets of that city. It was further held a demurrer to the petition was properly sustained as to the city, the mayor and the councilmen. The city was dismissed from the action by reason of governmental immunity. The mayor and others were dismissed because the petition failed to allege they were personally present when the acts were committed or that they directed or participated in them.
In City of Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819, it was said:
“It is claimed by the plaintiff that, in making the arrest, in taking him to prison, and while in confinement, he was beaten and treated with harshness and cruelty. The policeman who made the arrest had the right to use such force as was reasonably necessary under the circumstances to overcome the plaintiff’s resistance; and where resistance is made with deadly weapons, like a hatchet or hammer, the officer would not be held to that degree of nice and scrupluous care in effecting the arrest that would be required in ordinary cases; but, having overcome such resistance, and having the prisoner fully in his power, the officer is then liable for an unnecessary harm or indignity done to the prisoner. . . (p. 32.)
Other instances of unnecessary and excessive use of force by police officers may be found in our cases. (See Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886, and Bukaty v. Berglund, 179 Kan. 259, 294 P. 2d 228.)
In Wommack v. Lesh, 180 Kan. 548, 305 P. 2d 854, this court said:
“There can be no doubt but that the maintenance and operation of a police department by a municipality is a governmental function as distinguished from proprietary, thus clothing the municipality with immunity for acts of negligence or misfeasance of its employees engaged in the carrying out of such function. It is also a general rule that with respect to governmental functions a municipal officer performing duties strictly public is not liable for negligent acts of misfeasance of persons employed by the municipality who are under his general direction and authority, the rule being based on the ground that the doctrine of respondeat superior does not apply under such circumstances. (37 Am. Jur., Municipal Corporations, § 265, p. 888.) Entirely aside from the fact the petition is utterly devoid of facts connecting the chief of police, the city manager, the mayor and city commissioners with the incident in question, no authority has been cited, and we know of none, which would, under the allegations of this petition, impose liability on those officials for the action of the arresting police officer. (Citing cases.) . . .” (p. 550.)
A mayor or chief of police in charge of a police department cannot be held liable for the acts of the arresting officers under the doctrine of respondeat superior. In order for liability to attach they must personally direct or participate in the unnecessary and wrongful acts which result in injury or death. The federal law contains similar holdings (See Jordan v. Kelly (W. D. Mo. 1963), 223 F. Supp. 731.)
We have examined the facts alleged in the petition. From these allegations it appears Mayor Joseph McDowell assumed control of the police department in Kansas City without having experience as a police administrator. He sent two young inexperienced officers to apprehend Olive I. Allen. These officers willfully and wantonly shot the decedent and her death is alleged to have been caused by the unnecessary and unlawful use of force by the officers.
Under K. S. A. 13-1808 the mayor is ex officio commmissioner of the city police department. The department is placed under his charge and supervision. Assuming, however unlikely it may appear, that Mayor McDowell personally dispatched the officers to the scene at 4:30 in the morning, these acts were within his statutory authority as police commissioner. Such action would not impose personal liability upon him for the unlawful and wanton acts of the police officers. It is not alleged he directed or participated in the acts resulting in the death. Therefore, the petition fails to state a claim against Mayor McDowell upon which relief may be granted.
Quite a different situation appears with regard to Lloyd Rogers and Lawrence Stahl. They are charged with having been personally present and having fired the shots. It is alleged they used unlawful and unnecessary force to apprehend the decedent in that they carelessly, negligently, willfully and wantonly shot the decedent at point blank range of less than five feet.
Under the posture of the case as it comes to us we are not at liberty to consider facts alleged by the officers in the answer. Suffice it to say the allegations of their answer present a somewhat different account of the shooting than is set forth in the petition.
Under the authorities previously cited the petition stated a claim against officers Stahl and Rogers upon which relief might be granted.
The order of the trial court dismissing the claim against Mayor Joseph H. McDowell and against the City of Kansas City, Kansas, is affirmed. The order dismissing the claim against Lloyd Rogers and Lawrence Stahl is reversed and the case is remanded for further proceedings. | [
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|
The opinion of the court was delivered by
Kaul, J.:
Plaintiffs-appellants brought this action pursuant to K. S. A. 79-2005 to recover ad valorem taxes for the year 1965 paid under protest on ten oil and gas leases. After a trial in district court, resulting in an adverse decision, plaintiffs perfected this appeal.
The leases in question were rendered for taxes as of January 1, 1965. In April 1965 the leases were assessed for ad valorem purposes by the county clerk-assessor at a total of $669,515.00. Plaintiffs appealed to the Haskell County Board of Equalization which sustained the assessments. An appeal was taken to the State Board of Equalization which reduced the assessment approximately six percent to $629,200.00 on which the taxes in question were levied. On December 9, 1965, plaintiffs paid the taxes amounting to $27,-087.07, protesting $23,268.32 and claiming $3,818.75 to be the correct amount due for 1965. Plaintiffs alleged the protested portion was illegal due to an excessive valuation. There is no controversy concerning the form or filing of the protests.
After filing their protests, plaintiffs instituted this action within thirty days pursuant to the provisions of K. S. A. 79-2005. Anne M. Murphy was substituted as County Treasurer after the resignation of L. G. Phoenix, and the State Property Valuation Department and Alvin E. Jones (Ronald F. Dwyer substituted) Director were made additional parties.
Plaintiffs’ petition, to which their protests were attached, alleged that each of the defendants was shown by clear and convincing evidence that plaintiffs’ property was being assessed at an assessment ratio many times greater than other real and personal properties in Haskell County; and that defendants, by failing to grant plaintiffs the relief asked for, acted in an arbitrary, capricious and unlawful manner and contrary to law and fact to such a degree that such actions amounted to constructive fraud on the part of defendants and a denial of due process of law and equal protection of the laws to the plaintiffs and that defendants’ failure to reduce the assessment did not result from error in judgment, but was intentional unlawful discrimination against plaintiffs and subjected them to an excessive and disproportionate share of the tax burden in Haskell County.
Plaintiffs further alleged that the excessive assessments were not made in accordance with the provisions of K. S. A. 79-101, 79-330, 79-331, 79-1406, 79-1409, 79-1439 and 79-1602.
Plaintiffs prayed that the orders of the Board of Tax Appeals, sitting as the State Board of Equalization, be modified to reflect the values of plaintiffs’ leases, as established by the plaintiffs, and that the court direct the county treasurer to refund to plaintiffs taxes unlawfully collected.
The director of property valuation answered plaintiffs’ amended petition asserting that it failed to state a claim upon which relief could be granted; that the property was assessed in accordance with statutes of Kansas; that the use of schedules was lawful and proper and the preparation thereon was directed by K. S. A. 74-2441; that the schedules prepared for assessing oil and gas leases for 1965 show on their face that all of the factors to be considered, as set forth in K. S. A. 79-331, are considered therein, and that plaintiffs’ property was asseseed for the year 1965 in compliance with K. S. A. 79-1439 and all other applicable laws relating thereto.
Other defendants filed separate answers generally alleging that plaintiffs’ property was assessed in accordance with the statutes relative thereto and in accordance with the Kansas Price Schedule of Oil and Gas Properties for 1965, promulgated by the Director of Property Valuation under the authority of K. S. A. 74-2441.
The county treasurer prayed that the order of the State Board of Equalization be upheld and confirmed and that she be instructed to disburse, according to law, the sum now held in suspense under the protested payment of the plaintiffs.
The case was tried to the court which made comprehensive findings of fact and concluded that plaintiffs had not met their burden of proving conduct on the part of defendants constituting fraud, or that the assessments complained of were unequal or not uniform.
Both plaintiffs and defendants offered the testimony of petroleum engineers as evidence of values.
Essentially, plaintiffs contend the trial court erred (1) in not adopting the values established by their expert Mr. Yates, and substituting them for the values arrived at by the defendants in the application of the state price schedules; and (2) in failing to give consideration to the real estate assessment ratio study prepared by the property valuation director in establishing the ratio of assessment to one hundred percent justifiable value in Haskell County.
This controversy, like many other matters concerning taxation recently before this court, stems in part from legislative enactment in 1963 of laws relating to uniform assessment rates of property subject to ad valorem taxes. We refer in particular to K. S. A. 79-411, 501, 503, 1406 and 1439 providing that after January 1, 1964, all real and tangible personal property shall be assessed at thirty percent of justifiable value and establishing factors to be considered in the determination of justifiable value.
The evidence disclosed that the original assessment of the leases in question was made by the Haskell County assessor by following schedules furnished to her by the state director of property valuation. The assessor testified that two adjustments were made to the renditions filed by Cities Service Oil Company and that daily average was adjusted to 366 days instead of 365 and that operators’ allowance was credited. Both adjustments were small and lowered the valuations slightly. The assessor further testified that she used manuals and schedules prepared by the property valuation department for assessing other personal property in the county at thirty percent justifiable value. A comparison of assessments of 1964 and 1965 made by the assessor disclosed that, disregarding a lease not owned by plaintiffs in 1964, the assessments of the other nine leases decreased $32,675.00 in 1965. The assessor also testified that the board of county commissioners of Haskell County, on August 5, 1965, contracted with an appraisal firm, to reappraise all real estate at thirty percent justifiable value; that such appraisal was completed but hearings had not been held thereon at the time of trial.
The evidence disclosed that for a number of years prior to 1965 Kansas oil and gas leases were assessed by the use of a schedule prepared by the property valuation department. Physical equipment on leases was assessed at a figure computed by multiplying cost by sixty percent and the result by thirty percent or a net figure of eighteen percent of cost, as to physical equipment. Leaseholder productions and reserves were assessed at $800 times the daily average barrels of oil produced, with no deduction made for operators’ expense or a decline factor. The resulting figure was accepted as thirty percent of justifiable value of an average well.
For some time prior to 1965, the oil industry, including plaintiffs, requested modifications of the schedule so that more flexible valuations could result. The 1964 schedule was attacked on the grounds that an average well valuation tend to overvalue poor wells (low production) and undervalue good wells (high production).
In response to requests of the industry, and pursuant to his authority under K. S. A. 74-2441 (b), the director of property valuation, in the fall of 1964, convened a hearing in Wichita, attended by county assessors and various representatives of the oil industry for the purpose of working out a modification of the schedule which would result in a more flexible application. The result was the 1965 schedule, with which we are concerned.
Dr. Charles F. Weinaug, a professor of petroleum engineering at the University of Kansas, has represented the property valuation department as a consultant for six years. Dr. Weinaug reviewed the 1965 schedule and recommended some modifications, which were accepted.
The evidence discloses the 1965 schedule was again modified in 1966. The 1965 schedule followed prior schedules and was essentially readopted in 1966 as to valuation of equipment, except that some reductions were made for changing prices and the aging of oil lease equipment in the state. Reserves or production was computed as a value varying between $325 and $1,100 per daily average barrels reduced by schedule allowances for operators’ expenses, transportation charges, and secondary recovery. The valuation tables projected the life of a well from less than one year to a maximum of five years and contained a precomputed decline factor of five percent per year and a precomputed ten percent discount factor for use of money.
The 1965 schedule adopted some, but not all, of the features of the schedule previously proposed by Weinaug in 1962. Weinaug was retained by Haskell County to evaluate the leases in question and to testify for defendants at the trial.
The variance between the testimony of Weinaug and that of Yates gives rise to the first contention of plaintiff on appeal.
The evidence discloses that both Weinaug and Yates are highly qualified petroleum engineers with many years of experience in valuing oil and gas leaseholds in Kansas and other states. Both testified that oil leases are difficult to value by any method because of a great number of unknown quantities and judgment factors involved.
Weinaug testified that he considered all the factors considered by engineers in making an analytical engineering valuation, includ ing the statutory factors and he made a valuation as of January 1, 1965. He further testified that in making his evaluation he considered availability of money, rate of production, and the statutory factors of K. S. A. 79-331 — age of wells, quality of oil or gas, nearness of wells to market, cost of operation, character, intent and permanency of the market, the probable life of the well, the quantity of oil or gas produced, the number of wells being operated, and special water problems. He testified that there were no particular water problems in the leases involved in this litigation.
Yates testified that he used “analytical engineering valuation” in arriving at a valuation of reserves. His testimony as to his formula is narrated as follows:
“He values the leasehold by determining the total future reserves, projecting them on an annual basis and the oil revenue therefrom, deducts therefrom the operating costs on an annual basis to get the annual net operating income schedule by years throughout the future life of the property. He then discounts these figures at a current going back rate just for the cost of money. He used 6% as of January 1, 1967. This determines the present or future net cash realization expressed in present value dollars. . . .”
The record also discloses a considerable variance in the testimony of the two witnesses with respect to the values placed on equipment. Weinaug used the schedules prepared by the property valuation department resulting in an equipment valuation equal to eighteen percent of cost. Yates, on the other hand, valued equipment as salvage, at the time the lease will be abandoned, discounted back to the present day worth, after deducting cost of salvaging and deducting some of the inventory of pipe and any casing left in the well.
The opposing methods of equipment valuation result in considerable differences. Valuing the physical equipment under the state schedule, as applied by Weinaug, produced a thirty percent assessment of $72,925, as compared to $19,990, for physical equipment, arrived at by the method proposed by Yates. The method used by defendants in valuing physical equipment, as described by Weinaug, is aimed at valuation for equipment on a statutory basis for justifiable value as of January 1, 1965, not at some theoretically salvage date discounted back as proposed by Yates.
Plaintiffs also called as a witness Charles C. Rodd, a Vice-President of the Fourth National Bank and Trust Company, of Wichita, Kansas, who holds a degree in petroleum engineering and has had many years of experience in judging engineering appraisals on oil and gas properties for loan purposes. He testified that Yates’ method of valuation is accepted in the petroleum engineering field, and that the conclusions reached by Yates are reasonable. The witness admitted that there will always be some variations on valuation work in the field.
Defendants also called the manager of the ad valorem tax department of Cities Service Oil Company who introduced an exhibit showing the sale price received for other leases sold in Western Kansas in 1965. The trial court found that such sale prices were not sufficiently supported by lease and geographical data upon which to base a comparison with properties involved herein.
In summary the evidence discloses that total sums intended to produce assessments at thirty percent of justifiable value are as follows: Haskell County Clerk and Assessor $666,220; Kansas Roard of Tax Appeals $629,600; Dr. Weinaug $551,280, and Mr. Yates $221,760.
The first position asserted by plaintiffs is that the valuation arrived at by the 1965 schedule is excessive to the extent that constructive fraud was practiced on them. To support their position plaintiffs’ principal arguments are that their witness, Mr. Yates, is better qualified than Weinaug, and that the method of valuation used by Yates is the most acceptable, since it was accepted by the oil industry and used in valuing for loan purposes according to the testimony of Rodd. We are not persuaded by either argument. A careful examination of the testimony of Weinaug and Yates, as to their education, training and experience, clearly reveals that Weinaug is equally, or better, qualified as an expert in the field.
As we have stated, the valuing of producing oil leases in compliance with K. S. A. 79-331, setting out eight factors, which must be considered as well as any other factors known by the assessor to affect the valuation of the property, is an extremely difficult operation. Most of the items set out in the statute are judgment factors and may easily result in great variations, although applied by expert petroleum engineers, as in this case. As may be seen by the thirty percent valuation figures enumerated the leaseholds, with which we are concerned, are very valuable. A slight difference of opinion as to the application of any of the statutory factors, in particular the probable life of the wells or rate of decline of future production, could cause wide variations in valuations.
The trial court heard the lengthy and detailed testimony of the witnesses as to their respective methods of valuations, as well as the testimony of Weinaug, as to the background and promulgation of the state’s schedule, and concluded the application of the state’s schedules, in assessing plaintiffs’ leaseholds, did not amount to constructive fraud.
Generally, the credibility of witnesses and the weight and force of their testimony are matters for the determination of the trier of facts. (State v. Chuning, 201 Kan. 784, 443 P. 2d 248, State v. Scott, 199 Kan. 203, 428 P. 2d 458, and Carter v. Carter, 187 Kan. 74, 353 P. 2d 499.)
We find no error in the trial court’s rejection of the values proposed by plaintiffs’ witness Yates.
It appears the variance in valuations in this case basically stems from difference of opinion. There is no evidence that the assessment was arrived at fraudulently, arbitrarily or capriciously and in the absence thereof a difference of opinion as to value or an error in judgment by assessing officers is no reason for interference by a court. (Salt Co. v. Ellsworth County, 82 Kan. 203, 107 Pac. 640; Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129.)
Generally, the function of a court in such matters of assessment is to make certain that a taxpayer has the benefit of the honest judgment of the assessing officers and unless the assessment is so out of proportion as to give reasonable assurance that officers could not have been honest in fixing the valuation; interference by courts is not justified. Courts will not substitute their judgment for that of the assessing authority in the absence of fraud, or conduct so oppressive, arbitrary or capricious as to amount to constructive fraud.
An exhaustive delineation of the limited authority of courts with respect to assessment processes may be found in the recent cases of Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982; and Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906. Reiteration of what was said and held in those cases need not be repeated.
Plaintiffs’ second position is that constructive fraud was practiced on them by defendants in that all other property in Haskell County was assessed at twelve percent of justifiable value. Plaintiffs argue that such lack of uniformity amounts to constructive fraud under the rule laid down by this court in Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315. The record does not support the position taken by plaintiffs in this regard. The trial court found as follows:
“The plaintiffs failed to show any lack of uniformity in valuation and assessment between their property and all tire other oil leases and equipment in Haskell County. The only proof offered shows uniformity.
“The plaintiffs failed to show a lack of uniformity in valuation and assessment as between their properties and other personal properties. The exhibits when compared with assessments of personal property items with which I am familiar would tend to show a discrepancy in favor of the plaintiffs.”
The testimony of the county clerk-assessor that all personal property in Haskell County was assessed at thirty percent of justifiable value was unrefuted. As a result, plaintiffs’ claim of discrimination with respect to “all” other property in Haskell County clearly falls. In fact the evidence as to personal property, including oil and gas properties, proves uniformity rather than lack of it.
With respect to the establishment of discrimination by the real estate assessment ratio study, the trial court found as follows:
“The plaintiffs’ testimony offered to support their claim for a tax refund in the sum of $23,268.32 is based upon the applicable tax rate as applied to the difference between the approved value set by the State Board of Equalization and the 1964 Kansas real estate assessment ratio study manual of 12% (applied to Haskell County), which the plaintiffs contend is 12% of the justifiable value of Haskell County real estate.
“The ratio study manual considers and includes only part of one of the eleven factors (being section (i) which is the sale value on open market) set out in K. S. A. 79-503 as the factors to be considered in determining justifiable value. Said ratio study concerns less than one percent of the Haskell County real estate. This seems insufficient upon which to base a comparison for the purpose of determining a valuation and assessment'to be so arbitrary, oppressive, capricious and discriminatory as to amount to and constitute constructive fraud.”
We believe the findings of the trial court quoted are supported by the evidence. An exhibit prepared by the county clerk shows that in 1965 there were thirty-five sales in the county, amounting to .98 percent of a total of 3566 parcels of real estate, and in 1964 there were only forty sales, amounting to 1.12 percent.
The only other evidence as to assessment ratio is an exhibit in the form of an extract of the assessment ratio study for Haskell County for the years 1951 through 1965. As the trial court indicated, there was no foundation evidence offered as to the validity of the ratio study, as a basis for comparison, in determining the degree of lack of uniformity, if any, between assessment of plaintiffs’ properties and real estate in Haskell County.
Plaintiffs rely chiefly on Addington v. Board of County Commissioners, supra, to support their position in this regard. At the outset, it must be noted that Addington was decided in 1961, several years prior to the enactment of the legislation heretofore referred to. In Addington we find the following statement:
“. . . In the instant case the rate of assessment fixed by the county clerk-assessor at more than thirty percent of the true value of plaintiff’s property, as compared to the rate of assessment of twelve percent of the market value of all other property located in the county and subject to the same tax levy, was so arbitrary, oppressive and grossly discriminatory that it constituted constructive fraud on the rights of the plaintiff as a taxpayer and destroyed uniformity and equality in the manner of fixing the assessed valuations; also, it was illegal, thereby entitling the plaintiff to the relief sought as to the illegal portion of the tax paid under protest.” (p.533.) (Emphasis supplied.)
In Addington the property involved was a grain elevator assessed under the personal property assessment schedule for 1961. It appears from a reading of the opinion in that case that the elevator property in question was singled out of all other properties, real and personal, and assessed at thirty percent justifiable value while all other properties in the county (Stevens) were assessed at twelve percent. Apparently, in Addington the assessment ratio study was taken to be adequate for comparison purposes in determining uniformity and no attack thereon was made as in the instant case.
In 1961 all property, real and personal, was valued at its actual value in money pursuant to G. S. 1949, 79-1406 (amended in 1963, now K. S. A. 79-1406), under the rules set out for specific determination of true value in money as provided in G. S. 1949, 79-501 (amended in 1963, now K. S. A. 79-501.)
In 1963, pursuant to K. S. A. 79-411 and K. S. A. 79-501, real property was to be assessed at thirty percent of its justifiable value in money and in addition to sale price eleven other factors were enumerated in K. S. A. 79-503 (amended in 1965, now K. S. A. 1967 Supp. 79-503) and consideration thereof required in determining the justifiable value of real property.
The force and effect of many of the 1963 enactments were considered and discussed in Board of County Commissioners v. Brookover, supra, where it was held that ratio studies provided for by K. S. A. 79-1436 may properly be considered in determining the necessity for reappraisal to arrive at justifiable value as provided by
K. S. A. 79-1439. It was further held that the sale prices of real estate given by willing purchasers to willing sellers is substantial evidence of value for appraisal purposes, although consideration of other factors mentioned in K. S. A. 79-503 may be proper. In other words, the holding in Brookover indicates that a ratio study, based on sales, is admissible and may be substantial evidence of justifiable value, but the holding therein cannot be construed to mean that such evidence is conclusive.
Under the showing here, the trial court chose not to find the ratio study, based on sales of less than one percent of real estate parcels, standing alone, unsupported by any other evidence, as to actual percentage of justifiable value, to be a proper basis of comparison in establishing the assessment of plaintiffs’ properties as constructive fraud. Under the facts related, we believe the trial court’s finding is justified.
While Harshberger v. Board of County Commissioners, supra, was an injunction action, brought under the provisions of K. S. A. 60-907 (a), the problem involved is analogous in many respects to that under consideration here. The controversy in Harshberger stems from the fact that Ford county had completed its reappraisal of real estate and was on a thirty percent assessment ratio to the justifiable value, while none of the other counties bordering Ford county had completed their appraisal and none was using new valuations and assessments of thirty percent justifiable values; specifically five of such counties were applying a nineteen percent assessment ratio.
Plaintiffs in Harshberger were owners of taxable property situated in two hospital districts and five school districts, located partially in Ford county, and partially in other counties. They asked for injunctive relief because assessment ratios within the overlapping school and hospital districts differed according to the county within which the particular property was situated. We held the district court was without jurisdiction to grant the relief sought. While the instant action under K. S. A. 79-2005 is presented in a different framework, much of what is said in Harshberger is applicable here. The Ford County officials, as those in Haskell County in the instant case, were acting under legislative fiat and at the direction of the state board of equalization. In Harshberger we said:
“The courts have no difficulty with their power and authority where taxing bodies are attempting to proceed without statutory authority or contrary to statute (City Rly. Co. v. Roberts, 45 Kan 360, 25 Pac. 854) or where taxing authorities are proceeding against property outside their jurisdiction (Sherwood Const. Co. v. Board of County Commrs., 167 Kan. 421, 207 P. 2d 409). These are matters rightly within the province of the judiciary. However, when courts are confronted with purely administrative acts relating to taxation their jurisdiction becomes quite limited.
“The courts cannot fix the value of property for the purpose of taxation. Matters of taxation, especially assessments, are administrative in their character and should remain free of judicial interference in the absence of fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud.” (pp. 594, 595.)
In the case at bar, defendants have acted under legislative fiat in assessing plaintiffs’ properties at thirty percent justifiable value pursuant to K. S. A. 79-501 and 1439. The leases were assessed by valuing both equipment and oil (K.S. A. 79-330), as personal property, pursuant to K. S. A. 79-329, after consideration of all the factors enumerated in K. S. A. 79-331. The property valuation director properly furnished schedules pursuant to K. S. A. 74-2441. The county clerk-assessor conformed to the values in such schedules pursuant to K.S.A. 79-1412a, Seventh (amended in 1965, now K. S. A. 1967 Supp. 79-1412a, Seventh).
It is to be further noted that plaintiffs have presented their claims to the Haskell County Board of Equalization and the State Board of Tax Appeals, sitting as the State Board of Equalization, while the latter made some adjustments favorable to plaintiffs, neither board found lack of uniformity as claimed by plaintiffs.
If there is any discrepancy in Haskell County between real estate assessment ratios and the thirty percent of justifiable value required by law, it is to be promptly remedied by the county officials; since a reappraisal had been completed at the time of trial except for hearings thereon; according to the testimony of the county clerk-assessor. Since the law now requires that all property be assessed at thirty percent of justifiable value, reappraisal is the proper method of correcting inequalities with respect to real estate assessments. (See K. S. A. 79-1413a and Board of County Commissioners v. Brookover, supra.)
There is no indication in this record that, at any stage of the proceedings, the defendants attempted to proceed without statutory authority or in conflict with any statute. We find no indicia of bad faith, arbitrary or oppressive action or systematic discrimination resulting in a fraud upon plaintiffs’ rights by arbitrary distinction made between their properties and other property in the county, as we found in Addington. This is not to say that inequality or lack of uniformity in assessment if knowingly, intentionally or fraudulently made, will not entitle a taxpayer to relief under the provisions of K. S. A. 79-2005.
However, where the only evidence of excessiveness is in dispute and evidence offered to establish a base for comparison in attempting to show lack of uniformity is found to be inadequate and insufficient by the trier of facts, an assessment, made within statutory confines, will not be invalidated by judicial intervention.
One other point requires attention. While the matter does not appear to have been raised by plaintiffs in the court below, it is specified in their points on appeal. They now claim that even though the valuations of Yates are rejected, the values of Weinaug should be substituted for the valuations of the board of tax appeals. Plaintiffs argue there was no other evidence before the court as to values except those testified to by Yates and Weinaug. The contention is not supported by the record.
Plaintiffs’ action was an attack on the valuations of the board of tax appeals, sitting as the state board of equalization, rather than on valuations of Weinaug whose testimony was offered by defendants to rebut that of plaintiffs’ witness Yates. The 1965 schedules were in evidence before the court. The schedules show on their face that factors to be considered in the assessment of oil and gas leases, as enumerated in K. S. A. 79-331, were in fact considered in the preparation of the schedules.
Dr. Weinaug testified that the framework of the 1965 schedule was veiy similar to that proposed by the committee of the oil industry and that he was called upon by the property valuation department to review this schedule after its adoption and that a part, but not all, of his recommendations were incorporated which explains the variance. In summation Weinaug’s testimony is narrated:
“. . . Based on his knowledge of the 1965 schedule and his analytical engineering valuation he made of the leases owned by the Plaintiff, he feels the valuations placed thereon by the county clerk for the year 1965 were fair and reasonable values.”
While uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one taxpayer at a substantially higher valuation than that placed on other property within the same taxing district, the undisputed evidence here shows that plaintiffs’ property is valued uniformly with all other personal property and the evidence is insufficient to establish a systematic, arbitrary or intentional discrimination against plaintiffs’ property with respect to the justifiable value of real estate in the county.
The evidence in this case fails to establish conduct by the defendants so arbitrary, oppressive and grossly discriminatory that it constituted constructive fraud on the rights of plaintiffs; therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a reinstated direct appeal in a criminal action wherein the defendant, James LeVier, was convicted by a jury of assault with intent to ravish (G. S. 1949 [now K. S. A.] 21-431) and temporarily depriving the owner of an automobile of the use thereof (G. S. 1949 [now K. S. A.] 21-544). Following the denial of defendant’s motion for new trial, the district court sentenced him to the penitentiary under the habitual criminal act on the felony charge, and to the county jail on the misdemeanor charge, said sentences to run concurrently.
Before proceeding to the four specifications of error, we shall briefly recite the events giving rise to defendant’s incarceration. On December 4, 1961, about 10:00 p. m., the complaining witness, Cecelia Bolandren, was walking down the street near Brownie’s Tavern in Topeka, looking for her husband. As she crossed the street in the middle of the block she met a man she had never seen before, whom she later identified as the defendant, coming out of the tavern. He had a can of beer and offered her some, but she declined. He then invited her to accompany him. She refused. The man swore at her and insisted she go with him. Again she refused, and walked toward the tavern. The man then got into an automobile parked on the corner across the street from the tavern. Instead of entering the tavern, Mrs. Bolandren turned away and started toward her home. As she neared her home she saw a car turning the comer at a high rate of speed. The same man she had previously encountered jumped out of the automobile, ran toward her, cursed her, and asked her if she had any money. When she told him no, he took her purse and ordered her to get in the car. She refused. The man then grabbed her, assailed her with verbal obscenities, and threatened to kill her when she refused to submit to his sexual demands. He hit her about the face, head and mouth with his fists, and as she started to run away, he knocked her down. In the ensuing scuffle they rolled on the ground, the man grasping and clutching Mrs. Bolandren’s breasts in his hands, again threatening to kill her if she told anyone about the incident. The struggle ended with Mrs. Bolandren’s head coming to rest under the car by the rear wheel. The man jumped into the vehicle; Mrs. Bolandren moved her head and only her hair was ran over as the car sped away. As a result of the beating, Mrs. Bolandren suffered cuts and bruises on her mouth and nose, and lost a considerable amount of blood, as evidenced by bloodstains later found on her coat and blouse. Mrs. Bolandren then made her way to a neighbor’s house, and the police were called. The police took Mrs. Bolandren to the police station where she related her experience to two detectives. Several hours later Mrs. Bolandren identified the defendant in a lineup as the man who had assaulted her.
The evidence further disclosed that the automobile defendant was driving at the time of the assault belonged to a waitress at the tavern and had been taken from its parking place shortly before 10:00 p. m. The vehicle was found soon afterwards in the vicinity of the tavern. The waitress identified the defendant in a lineup as the person she had seen running from the car when it was returned. The purse taken from Mrs. Bolandren when she was assaulted was found in the car.
The record discloses defendant was represented by retained counsel until five days prior to trial, when his counsel withdrew and the court appointed Mr. William R. Brady, an experienced attorney of the Shawnee County Bar. The case proceeded to trial on March 6, 1962.
Defendant’s initial complaint is that his court-appointed counsel was not given sufficient time to prepare an adequate defense. Neither the defendant nor his counsel requested a continuance; hence, the defendant is in no position now to urge the point as a ground for reversal. Even had the trial court denied a request for continuance, its ruling would not be disturbed, since there has been no affirmative showing the court abused its discretion to the extent the defendant’s substantial rights were prejudiced. (State v. Milum, 202 Kan. 196, 447 P. 2d 801; State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) The state’s witnesses were thoroughly cross-examined by defense counsel. Defendant offered his own testimony and that of other witnesses in support of his plea of alibi. There is no indication in the record the defense was inadequately prepared for trial, and under the circumstances, defendant’s substantial rights were not prejudiced by his being placed on trail five days after the appointment of counsel.
Defendant next urges the court erred in admitting testimony concerning identification of him at two separate “illegal” lineups, and relies on United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926. The contention is without merit. The constitutional rule established in Wade, as well as in Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, is not retroactive and applies only to cases involving confrontations for identification purposes conducted after the date of those decisions on June 12, 1967. (Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; State v. Kimmel, 202 Kan. 303, 448 P. 2d 19; State v. Chuning, 201 Kan. 784, 443 P. 2d 248, cert. denied 393 U. S. 1069, 21 L. Ed. 2d 712, 89 S. Ct. 726.) The lineups here were conducted in December 1962. Defendant’s main argument is the lineups were “fixed,” because he was the only darkskinned person of Mexican or Indian race, and the other men were all older than he. This was a matter thoroughly explored by defense counsel on cross-examination of the complaining witness, the waitress at the tavern, and at least two police officers. No objection was interposed to the testimony, and the adequacy of the evidence relating to identification was a matter for the jury. In State v. Hill, 193 Kan. 512, 394 P. 2d 106, we said:
“The means whereby or the manner in which an extrajudicial identification is made goes to the weight of the evidence rather than to its admissibility.” (Syl. f 2.)
(Also, see, State v. Sanders, 202 Kan. 551, 451 P. 2d 148; and State v. Childs, 198 Kan. 4, 422 P. 2d 898.)
The remaining specifications of error relate to defendant’s conviction of assault with intent to ravish in violation of 21-431. Defendant asserts the trial court erred in overruling his motion for new trial, because the verdict finding him guilty of the offense under 21-431 was not supported by the evidence. He directs our attention to the information, which charged, in part, that:
“. . . James Laveir (sic) . . . on the _ day of December, A. D. 1961, did unlawfully, feloniously, and willfully
“. . . on purpose and of malice aforethought assault one Cecelia Bolandren with a deadly weapon, to-wit: his fists, with the intent to ravish the said Cecelia Bolandren. . . .”
and argues there was no proof to establish his fists were a deadly weapon, as required by the statute.
The pertinent portion of 21-431, as it relates to the charge of assault with intent to ravish, states:
“Every person who shall, on purpose and of malice aforethought, . . . assault or beat another, or assault or beat another with a deadly weapon, . . . with intent to . . . ravish . . . such person . . . shall be punished. . . .”
We are not compelled to decide whether an assault with a man’s fists, under the facts in this case, constituted an assault with a deadly weapon. The wording of the statute, being in the disjunctive, requires only that there be an assault or beating on purpose and of malice aforethought with the intent to ravish. The allegation that fists are “a deadly weapon” may be stricken as surplusage, and, absent the allegation, the information still charged an offense under the statute. We note that the sufficiency of the information was never challenged by a motion to quash. Be that as it may, surplusage or redundant allegations will not vitiate an information where there is specific matter alleged sufficient to indicate the crime and person charged. Thus, an information which sufficiently charged the defendant with the commission of a specific offense is not rendered defective by additional language descriptive of the manner and means by which it was committed, such language being, at most, only surplusage. (G. S. 1949 [now K. S. A.] 62-1011; State v. Sharp, 202 Kan. 644, 451 P. 2d 137; State v. Champ, 172 Kan. 737, 242 P. 2d 1070; State v. Morrison, 46 Kan. 679, 27 Pac. 133; State v. Furney, 41 Kan. 115, 21 Pac. 213; 41 Am. Jur. 2d, Indictments and Informations §§ 71, 74; 4 Whartons Criminal Law and Procedure, Indictment and Information § 1767, p. 565.) The failure to prove an immaterial allegation in the information does not constitute a fatal defect so long as the substance of the offense charged is proved. (State v. Lee, 197 Kan. 463, 419 P.2d 927, cert. denied 386 U. S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900, rehearing denied, 386 U. S. 978, 18 L. Ed. 2d 142, 87 S. Ct. 1170; State v. Wahl, 118 Kan. 771, 236 Pac. 652; State v. Wiencha, 114 Kan. 448, 219 Pac. 497; 41 Am. Jur. 2d, Indictments and Informations § 266; 42 C. J. S., Indictments and Informations § 250.)
After a careful review of the record we are of the opinion the state’s evidence, as previously narrated, was sufficient to establish the defendant acted with malice aforethought when he assaulted and beat Mrs. Bolandren, and possessed the requisite intent to ravish her. A man is presumed to do that which he actually does and to intend the consequences which naturally and probably flow from his voluntary acts. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287.) Furthermore, malice aforethought, as required by the statute, may be inferred from the circumstances surrounding the assault, such as the character of the assault made, and whether the attack was unprovoked or deliberately committed. (State v. Lee, supra; State v. Phillips, 197 Kan. 70, 415 P. 2d 421.) It is obvious here the jury believed Mrs. Bolandren’s account of what occurred and gave no credence to defendant’s plea of alibi. We believe from her evidence the jury could infer that defendant possessed the requisite felonious intent to ravish her. Likewise, the jury, in accepting Mrs. Bolandren’s testimony, was justified in drawing an in ference of malice aforethought from all the circumstances attending the assault itself.
Defendant’s final contention is that the trial court erred in failing to instruct on the lesser included offenses of assault with intent to commit a felony under G. S. 1949 [now K. S. A.] 21-434, and simple assault under G. S. 1949 [now K. S. A.] 21-436. We note defendant did not request the jury he instructed on the lesser offenses. The question is whether the failure to give such an instruction, even though not requested, was erroneous under G. S. 1949 [now K. S. A.] 62-1447, which requires the trial court, in charging the jury, to state all matters of law necessary for its information in rendering a verdict. In a proper case, 21-434 and 21-436 cover lesser included offenses in an information charging a felonious assault under 21-431; and when the evidence justifies the court’s instructing on the lesser offenses, it is its duty to do so. (See, State v. Schaefer, 190 Kan. 479, 375 P. 2d 638; State v. Hanks, 179 Kan. 145, 292 P. 2d 1096; State v. Murray, 83 Kan. 148, 110 Pac. 103.) The trial court, however, is not required to instruct on lesser included offenses which are not naturally or reasonably supported by the evidence. We have said it is not error for the court to omit instructing the jury on lesser offenses included in the charge when the evidence tends only to establish the greater offense charged and does not tend to establish any of the lesser offenses included therein. (State v. Fletcher, 174 Kan. 530, 256 P. 2d 847; State v. Bridge, 173 Kan. 13, 244 P. 2d 195, and cases cited therein. Also, see, State v. Mitchell, 181 Kan. 193, 310 P. 2d 1063, 68 A. L. R. 2d 895.) In State v. Hoy, 199 Kan. 340, 430 P. 2d 275, the defendant relied solely on alibi as a defense, and was convicted of first degree murder. In holding that the trial court did not err in failing to instruct on lesser degrees of the offense, we said:
“In a prosecution for first degree murder failure to instruct the jury on any lesser degree is not error if the evidence at the trial excludes theory of guilt on any lesser degree of the crime.” (Syl. f 1.)
The essential difference between 21-431 and 21-434 is that the former requires that the assault be made on purpose and of malice aforethought. (State v. McCullough, 96 Kan. 453, 152 Pac. 766; State v. Murray, supra; State v. O’Shea, 59 Kan. 593, 53 Pac. 876.) Both the elements of malice aforethought and intent to commit a felony are absent in 21-436. The defense in this case, as in Hoy, was that of alibi, which the jury refused to believe. There was no evidence tending to discredit or mitigate the testimony of Mrs. Bolandren or that of any of the state’s witnesses concerning the assault upon her, and the evidence was ample to support the verdict finding the defendant guilty under 21-431. In our view the evidence did not tend to establish the defendant’s guilt of the lesser offenses under 21-434 and 21-436, and an instruction in regard thereto was neither justified nor warranted.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
O’Connor, J.:
This appeal involves a settlement agreement entered into by the plaintiff, Constance K. Wiles, and the defendant, Richard E. Wiles, on May 27, 1966, relating to alimony, division of property, and child support. The agreement was approved by the district court and incorporated in a decree of divorce rendered on the same date.
Subsequently, a dispute developed between the parties concerning certain provisions of the agreement. On January 23, 1967, plaintiff filed a motion requesting the district court to construe portions of the agreement and order defendant to comply with the terms thereof. Following a hearing on the motion, the court entered an order on June 30, 1967, with respect to (1) household goods to be delivered to plaintiff, (2) dividend money to be paid to plaintiff, (3) shares of American Tobacco Company stock to be delivered to plaintiff, and (4) assignment of life insurance policies on defendant’s life to secure child support payments. Defendant has appealed from that part of the order with regard to the first three items, and plaintiff has cross-appealed from the portion pertaining to the fourth.
The case was here previously on an appeal by defendant from an award of attorneys’ fees for plaintiff’s attorneys (Wiles v. Wiles, 200 Kan. 574, 438 P. 2d 81). That opinion contains many of the salient facts concerning the financial status of the parties. They were people of substantial means. Their combined assets totaled approximately $1,600,000, of which plaintiff’s separate property amounted to about $200,000. In addition, defendant owned life insurance having a face value of $150,000 and a cash value in excess of $76,000. On defendant’s fortieth birthday — July 29, 1966 — he came into possession of stocks valued at over $900,000 previously held for his benefit in a trust established by his grandfather.
The settlement agreement generally provided that plaintiff, in addition to her separate property, was to receive stock valued at $550,000, a sum not to exceed $75,000 in cash to be used in the purchase of a home, and most of the household goods and furnishings in the home previously occupied by the parties. Plaintiff was to have custody of the four minor children, and defendant agreed to pay child support for each child in the amount of $2,500 per year, said payments to be secured by defendant assigning to plaintiff certain life insurance policies on his life.
With this background we now turn to the points raised by each of the parties in relation to the specific provisions of the settlement agreement which are in controversy.
Defendant first complains of the district court’s order relating to household goods and furnishings to be delivered to plaintiff. We find that under the settlement agreement defendant was to receive the home in Mission Hills as his sole and separate property, and plaintiff was to have all of the household goods and furnishings except certain listed articles which were to be retained by defendant. Plaintiff was given the privilege of selling at the home any of the household items set over to her, and was to remove at her expense any remaining items when she moved from the premises.
Shortly after the divorce plaintiff went to California, and pursuant to an oral understanding between the parties, defendant shipped to her approximately 282 items from the home. Plaintiff in her motion alleged defendant failed to deliver to her certain items to which she was entitled under the terms of the agreement. At the hearing on the motion defendant admitted many of the articles had not been shipped for various reasons which, to him, were justifiable. The district court, however, found plaintiff was entitled to those items she claimed, and ordered defendant to send them to her at her expense. Defendant has appealed from that part of the district court’s order, contending he has substantially complied with the terms of the agreement. The items in dispute are too numerous to discuss in detail. We have, however, reviewed the record and the arguments advanced, and conclude that the district court properly found plaintiff was entitled to all items of household goods and furnishings claimed by her except a chaise lounge and two iron beds which did not belong to either of the parties. To that extent the order must be modified.
Defendant next assigns as error the lower court’s order regarding dividend money to be paid to plaintiff. The settlement agreement called for delivery by defendant to plaintiff of certain corporate stocks within ninety days after May 27, 1966, and further provided, in part:
“. . . The Plaintiff shall be entitled to receive all dividends of every kind and nature whatsoever declared after this date on the stocks assigned and delivered to her by Defendant pursuant to this agreement and any such dividends received by Defendant prior to such assignment shall be paid by him to Plaintiff at the time of delivery of said stocks.”
Another portion of the agreement stated:
“. . . Plaintiff has agreed to accept the transfer of securities herein-before referred to together with dividends thereon in lieu of further support payments or alimony. However, the Defendant agrees to advance to Plaintiff the sum of $1,000.00 per month commencing with June 1 of this year until delivery of the securities to which Plaintiff is entitled pursuant to paragraph 6 of this agreement together with dividends thereon is made. The Defendant shall be reimbursed for such advancements by retaining an amount equal thereto from the dividends due Plaintiff.”
The parties agreed the total amount of dividends due plaintiff under the terms of the agreement was $5,882.11, and defendant had paid plaintiff four monthly payments totaling $4,000. This left a difference of $1,882.11 in dividend money owing to plaintiff.
As previously indicated, under the terms of the agreement plaintiff was given the privilege of selling at the home household goods and furnishings set over to her, and any items remaining were to be moved at her expense. The day after the agreement was signed the parties reached an oral understanding to deviate from this provision of the written agreement. The substitute arrangement is best described by plaintiff’s own testimony. Plaintiff had planned to have a garage sale at the home to obtain money for moving her furniture to California. A garage sale did not meet with defendant’s approval. Plaintiff expressed her willingness to forego the sale and leave her furniture in the home for defendant and the children to use until she was ready for it, if defendant would pay for the crating and shipping thereof to California. Defendant agreed and gave plaintiff a check for' $3,000 as a down payment on the moving expense.
In early November 1966 the parties were before the district court on some type of hearing, the nature of which is not clear from the record. There was testimony at that hearing concerning the substitute oral agreement, and the court ordered defendant to ship the furniture to plaintiff in California at his expense, which he subsequently did. The result was that the $3,000 was never used by plaintiff to pay any part of the shipping costs. The matter of the oral agreement and its precise terms was again aired at the hearing of plaintiff’s present motion. Both parties testified substantially the same regarding the terms of the agreement as above outlined. Defendant’s contention that he was entitled to claim the $3,000 paid plaintiff as a setoff against the $1,882.11 balance of dividend money due her was rejected by the district court. We believe the court erred in this respect. All of the testimony at both the November hearing and the hearing on plaintiff’s present motion was to the effect the $3,000 was a down payment on the shipping expense. Despite this testimony the district court apparently determined the money was paid to plaintiff solely as consideration for her agreeing to forego a garage sale at the home and leave the furniture for the remainder of the summer. This conclusion is contrary to the evidence. Plaintiff now argues the district court’s determination of the matter at the earlier hearing in November was res judicata and the subject cannot now be raised in the present appeal. We do not agree. It would appear that the November proceeding was merely an interim hearing regarding delivery of the furniture and did not encompass an accounting of funds due either of the parties.
The next point urged by defendant relates to the number of shares of American Tobacco Company stock which the district court found plaintiff was entitled to under the terms of the settlement agreement.
Paragraph 6 of the agreement provides as follows:
“As a further and final division of property and in full satisfaction and in lieu of support and all alimony to which Plaintiff might otherwise be entitled in the event she is granted a divorce, the Defendant agrees within ninety (90) days from this date to assign and deliver to Plaintiff shares of corporate stock selected from those described and listed on Schedule 3 hereto attached and made a part hereof having a total aggregate value, determined as hereinafter provided, of $550,000.00. The per share value’ for each such share, as set forth on said Schedule 3 shall be the value used in determining the number of shares needed to make up said total aggregate value of $550,000.00. The shares to be delivered under this paragraph shall be either—
(a) All of the shares described and listed on said Schedule except the shares of Sunshine Biscuits, Inc. plus sufficient shares of Sunshine Biscuits, Inc. to make up the said total aggregate value of $550,000.00; or
(h) One-half of each type of shares described and listed on said Schedule except the shares of Sunshine Biscuits, Inc. plus sufficient shares of Sunshine Biscuits, Inc. to make up the said total aggregate value of $550,000.00,
at Defendant’s option. It is understood that if through stock dividends, stock splits or mergers occurring prior to said assignment and delivery to Plaintiff the number or identity of any type of shares listed or described on said Schedule shall be altered, then the provisions hereof shall apply to any other shares attributable to the respective shares described and listed on said Schedule. The value of any shares which may split or upon which a stock dividend may be paid shall be present per share value’ adjusted to account for such change, and the value of each share which may be issued in lieu of any present share or share shall be the average between the market high and low thereof from January 1, 1966 to May 21, 1966. . . .”
The schedule attached to the agreement listed the number of shares of stock in various companies, including 19,408 shares of Sunshine Biscuits, Inc. owned by the defendant outright, and 12,073 shares of Sunshine Biscuits, Inc. held in trust for him. The schedule also listed the “agreed per share value” for each type of stock. As previously noted, on May 27, 1966, a sizeable part of defendant’s stock portfolio was held in trust by The First National Bank and defendant did not become entitled to those shares until after his fortieth birthday on July 29, 1966.
On the same date the settlement agreement was executed — May 27, 1966 — the stockholders of Sunshine Biscuits, Inc. approved a merger of said corporation into American Tobacco Company effective May 31, 1966. Under the terms of the merger proposal 1.4 shares of American Tobacco Company stock were issued in exchange for each share of Sunshine Biscuits, Inc. stock. As a result, in June 1966 defendant received a total of 44,072 shares of American Tobacco Company stock in exchange for the 31,481 shares of Sunshine Biscuits, Inc. stock owned by him or held in trust for his benefit.
The negotiations on the settlement agreement extended from early March 1966 until the date of its execution, during which time each party was represented by capable and experienced counsel. Defendant first learned of the proposed merger in January or February of 1966, when he read about it in the newspaper. He subsequently discussed the matter with one of his attorneys. The plaintiff also had knowledge of the proposed merger and mentioned it to her attorneys. In fact, on April 29, 1966, an official announcement of the proposal was sent to all Sunshine Biscuits, Inc. stockholders, which would include the plaintiff — she being the owner of some Sunshine Biscuits, Inc. stock in her own right. Despite the knowledge of the parties and their attorneys, the record fails to disclose the matter was discussed when the settlement agreement was executed.
When the time came to distribute the stock, defendant decided to exercise option (b) under the agreement, which provided for delivery to plaintiff of one-half of each type of stock listed on the schedule plus sufficient shares of Sunshine Biscuits stock to make up a total aggregate value of $550,000, using the “agreed per share value” as set forth in the schedule for determining the number of shares required. In the meantime the Sunshine Biscuits stock had been replaced with American Tobacco stock; therefore, defendant delivered to plaintiff one-half of each type of stock listed on the schedule plus 11,750 shares of American Tobacco stock (valued at $36.50 per share — the average market price from January 1, 1966, to May 21, 1966) to make a total aggregate value of $549,997.85. Plaintiff acknowledged receiving the stock but contended in her motion before the district court that under paragraph 6 of the settlement agreement she was entitled to 816 additional shares of American Tobacco stock. The district court upheld plaintiff’s contention and ordered defendant to deliver to her the additional shares and pay any dividends thereon received by him since May 27, 1966.
Defendant has appealed from this portion of the district court’s order, contending he has fully complied with the terms of the agreement. His argument, in substance, is that the agreement contemplates the total aggregate value of shares to be delivered to plaintiff was $550,000, and that the fourth and fifth sentences of paragraph 6 specifically covered this situation, by providing that in the event of merger, or if the number or identity of any type of shares shall be altered, the provisions of the agreement shall apply to any other shares attributable to those listed on the schedule, and further, by providing the method of determining the value of any new shares issued in lieu of any present shares.
Plaintiff, on the other hand, seeks to uphold the district court’s order by the argument that the “pegged value” of Sunshine Biscuits stock as provided in the agreement was $47.75 per share, that the figure of $550,000 was a “fictitious” or “artificial” value intended by the parties to determine the number of shares of stock to be delivered, that as of May 27, 1966, one-half of the value of stocks other than Sunshine Biscuits amounted to $121,405, leaving $428,-595 worth of Sunshine Biscuits stock to be delivered, that using the “pegged value” of $47.75 per share, defendant would have been required to deliver 8,975.8 shares of Sunshine Biscuits, that as the result of the merger each Sunshine Biscuits share was exchanged for 1.4 shares of American Tobacco stock, and the American Tobacco stock being “attributable” to the Sunshine Biscuits stock by the terms of the agreement, she was therefore entitled to a total of 12,566 shares instead of the 11,750 shares actually delivered to her.
There appears to be no dispute that the high-low average of American Tobacco stock for the period from January 1, 1966, to May 21, 1966, was $36.50 per share. By applying the $36.50 “per share value” to the additional 816 shares of American Tobacco stock claimed by plaintiff, defendant makes the point that under plaintiff’s theory she would be receiving $29,784 more in stock than the $550,000 total aggregate value provided for in the agreement.
A cardinal rule in the construction of contracts is that they must be interpreted in light of their own peculiar provisions, and every provision must be construed, if possible, so as to be consistent with every other provision and to give effect to all. (Brack v. McDowell, 182 Kan. 368, 320 P. 2d 1056.) If a contract is clear and unambiguous, the terms thereof must be construed in such manner as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four corners of the instrument itself. (Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269.)
We are unable to subscribe to plaintiff’s interpretation of paragraph 6 of the agreement. To do so would ignore the first and third sentences of said paragraph, which clearly limit the total aggregate value of stock to be delivered to plaintiff to $550,000. Furthermore, under plaintiff’s interpretation that she is entitled to any shares attributable to the shares listed on the schedule (fourth sentence), the other portions of the paragraph are disregarded, particularly the fifth sentence. The fourth sentence expressly states the provisions of the paragraph shall apply to any other shares attributable to those described. This court has often said the intent and purpose of a contract cannot be determined by considering an isolated sentence, but by considering and construing the instrument in its entirety. (Zelinkoff v. Johnson, 185 Kan. 489, 345 P. 2d 665; First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389.)
Plaintiff argues the fifth sentence is useless and confusing, and we agree, were the agreement construed as plaintiff requests. If, as she suggests, she is entitled to any shares attributable to those listed on the schedule, there would be no need to assign a value to them in order to determine the number of shares to be delivered. The fifth sentence would have no purpose. On the other hand, if she is entitled only to stocks having an aggregate total value of $550,000, then the fifth sentence becomes most significant and meaningful. We cannot assume the sentence was inserted without good reason. We regard its use as being in contemplation of the very situation that developed, and was intended to apply where any of the listed shares were “altered” and new shares were issued in lieu of any present shares. Defendant’s interpretation of paragraph 6 gives effect to each of the provisions in the paragraph, and we deem it the proper construction to be made.
Plaintiff makes the further argument that the doctrine of equitable estoppel which is designed “to prevent those who overreach from reaping benefits to which they are not entitled, and to secure to the deserving, the promotion of justice,” should be applied in this case. We have examined the numerous decisions cited by plaintiff in support of her argument, but we are unable to say that defendant’s conduct was such as to establish the necessary elements for application of the doctrine. (See, Pelischek v. Voshell, 181 Kan. 712, 313 P. 2d 1105.)
We hold that defendant has fully complied with paragraph 6 of the settlement agreement, and that the district court erred in order ing him to deliver to plaintiff 816 additional shares of American Tobacco stock and the accrued dividends thereon.
Plaintiff’s cross-appeal relates to the matter of the assignment to her of life insurance policies on defendant’s life. Paragraph 9 of the settlement agreement provides in part:
“The Defendant shall pay to Plaintiff for the support and maintenance of each of said minor children the sum of $2,500.00 per year until each such child becomes twenty-one years of age or sooner dies ... To secure the child support payments to be made under this paragraph the Defendant will assign to Plaintiff the insurance policies on his life described and listed on Schedule 5 attached hereto . . . The Defendant agrees ... to maintain said policies in force to the extent necessary to always provide sufficient funds upon his death for the payment of all of the child support thereafter to be paid by him hereunder.” (Emphasis added.)
Schedule 5 listed four insurance policies with a face amount of $150,000 and cash value of $76,379.25.
In her motion to the district court plaintiff alleged defendant had failed and refused to assign the insurance policies as required by paragraph 9 of the agreement. At the hearing on the motion testimony was given by a life insurance underwriter affiliated with Massachusetts Mutual Life Insurance Company, the insurer on two of the policies, that the two policies with his company alone would be sufficient to guarantee payment of all future child support for the parties’ four children “ even if Mr. Wiles were to die immediately.” His company, however, would not recognize an assignment of policies “conditioned” upon payment of child support. The underwriter suggested the same thing could be accomplished by means of a trust which would refer to the terms of the agreement. The defendant then offered in evidence a proposed trust agreement executed by defendant as “grantor” and The First National Bank of Kansas City as “trustee.” The instrument provided that the grantor had deposited the four life insurance policies with the trustee, that grantor had arranged for the trustee to be designated as the beneficiary of all policies, that the trustee would receive all funds payable to it upon grantor’s death under such policies, and that the trustee would hold and invest the trust estate and pay out of income and principal all of the payments accruing after grantor’s death which were required to be made by the grantor under paragraph 9 of the agreement. The trust agreement further provided when all sums required to be paid by grantor under paragraph 9 had been paid, the trust would terminate. If at the time of termina tion the grantor was alive, then the policies would be delivered to the grantor and beneficiaries changed as he might direct. But if the grantor was dead at the termination of the trust, the remaining trust estate would be distributed as directed in grantor’s last will and testament; or if there was no will, or direction in a will, then to his then living descendants per stirpes. The grantor relinquished his right to assign any of the policies or change the beneficiaries therein until the trust terminated.
The district court found that under the terms of the settlement agreement plaintiff was entitled to assignment of the four insurance policies in trust to secure payment of child support. To effectuate the assignment, the court ordered both plaintiff and defendant to accept and execute the proposed trust agreement and to comply with its terms.
Plaintiff now complains of the district court’s order and contends she was entitled to an outright assignment of the policies under the provisions of the settlement agreement, and that assignment of the policies was not tied specifically to child support but furnished a part of the total consideration for the entire agreement settling the property and alimony rights of the parties. We are unable to follow plaintiff’s reasoning on this point.
Paragraph 9 of the settlement agreement deals exclusively with child support. If the paragraph is read in its entirety, we believe reference to the assignment of insurance policies was intended only for the purpose of providing security to plaintiff for the payment of future child support in the event of defendant’s untimely death. The last sentence of the paragraph requires defendant to maintain the policies in force to the extent necessary to provide funds “upon his death for the payment of all of the child support thereafter to be paid hereunder.” (Emphasis added.) This would indicate the contingency intended to be guaranteed against was payment of child support if defendant died before his obligation to pay support under the terms of the agreement ceased. We are of the opinion that by the terms of the settlement agreement a trust arrangement was fairly contemplated whereby the insurance policies were to be used only as security for child support payments accruing after defendant’s death. The proposed trust agreement, while not specifically provided for, may fairly be implied from the terms of the settlement agreement itself, so that the express purpose of the paragraph may be carried into effect. This court has said that provisions not specifically mentioned in a written con tract, but which are essential in carrying out its purposes, may be implied, and when properly implied are as binding as if written therein. (Sykes v. Perry, 162 Kan. 365, 176 P. 2d 579; Zelleken v. Lynch, 80 Kan. 746, 104 Pac. 563.) Although the district court had no authority to remake the contract, it was authorized to enforce the provisions of the one already made, including the rendering of an appropriate order which would carry out the purposes implied from the express terms of the written agreement. Accordingly, the court’s order relating to the proposed trust agreement will not be disturbed.
In light of what has been said, the judgment of the district court is affirmed in part and reversed in part. The case is remanded to the lower court with directions to modify its order in accordance with the views expressed in the opinion. | [
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The opinion of the court was delivered by
Fontron, J.:
On October 5,1957, six enterprising race enthusiasts, five of whom operated race tracks, formed a partnership under the name of Grand National Jalopy Promotions, to manage, promote and conduct annual National Champion Jalopy Races. Four of the partners, including Jack Merrick and O. L. Douglas, the defendants herein, each had a 20% interest in the enterprise, while the plaintiff, James E. (Jim) Collins, together with Verne Hamilton, the only partner not owning a track, were to hold a 20% interest jointly. The partners were to contribute whatever capital was required and were to share profits and bear losses in the proportions mentioned.
The first race was held in Oklahoma City and resulted in a loss. Thereupon the partners transferred the race to the benign and friendly atmosphere of the fair city of Hutchinson, where the event was kindly received and has consistently shown a profit.
One of the partners, a Mr. Ray Lavely, dropped out of the partnership in 1958, and Mr. Hamilton withdrew therefrom in 1959. Neither man asked anything for his proportionate interest in the partnership. In the fall of 1960, after the race for that year had been concluded, Mr. Merrick wrote the other three remaining partners, declaring the partnership of Grand National Jalopy Races dissolved, and remitting to them their shares of the 1960 profits together with the modest amount of capital each had contributed. At this juncture Mr. Eber Higgins, a third partner, faded from the scene without evidence of further compensation.
In the letter sent to the plaintiff, Mr. Merrick offered a 15% interest in a new partnership of Merrick, Douglas and Collins, and the races held in 1961 and 1962 were both conducted by the new partnership on this basis. On October 17, Merrick addressed a letter to Collins enclosing a check which represented Collins’ share of profits from the 1962 jalopy race, plus the return of a $300 deposit advanced by Collins in 1961. In the letter, Merrick advised Collins that his association with the National Jalopy Championship was terminated, apparently because Collins no longer had a race track.
Following receipt of this letter, Collins sought legal advice. The sporadic exchange of correspondence which thereafter ensued between counsel for Collins and Merrick proved to be fruitless and Collins thereupon filed this action to dissolve the partnership, to obtain an accounting, and for other equitable relief.
It should be pointed out at the beginning that the trial court found, in a well-reasoned memorandum opinion, that the original partnership formed by the six entrepreneurs in 1957 was terminated by agreement and by the withdrawal of retiring partners. The court also found that the arrangement existing between Merrick, Douglas and Collins in 1961 and 1962 was a partnership at will, which was effectively terminated by the notice given Collins on October 17, 1962, that the partnership was terminated. These findings of the trial court find substantial support in the record and must be recognized, on appeal, as controlling.
It is conceded by all the parties that the partnership existing between Merrick, Douglas and Collins had no physical property or tangible assets. However, the plaintiff, Collins, has contended throughout this lawsuit, and now urges on appeal, that the good will which appertained to the promotion and operation of the Grand National Jalopy Race each year constituted a partnership asset; that his 15% interest in that asset was appropriated by the defendants, Merrick and Douglas; that the value of his 15% share of the good will amounts to $5,000; and that he is entitled to recover that amount from the defendants.
We believe it may rightly be said that whatever good will may attach to a business operated by a partnership is generally considered to be part of the property and assets of the firm. (40 Am. Jur., Partnership, § 109, pp. 203, 204; 68 C. J. S., Partnership, § 69, p. 501.)
It is generally held, also, that the good will of a partnership is an asset for which a partner must account when he appropriates the same to his own use. (65 A. L. R. 2d 521, et seq.) However, the existence of good will must be established as a fact by the partner alleging it, as well as what its value may be. In 68, C. J. S., Partnership, § 69, p. 501, we find the principle stated in the following language:
“. . . Whether or not partnership good will exists in any particular case will depend on the particular facts and circumstances involved, and one test for determining its existence is whether a reasonable man would pay anything for it. . . .”
The trial court recognized the foregoing principles by pointing out in its memorandum opinion that when the partnership of Merrick, Douglas and Collins was terminated by Merrick’s written notice, Mr. Collins became “entitled to his share of any value which was attributable to the event name of ’National Championship Jalopy Race’ and any good will.” The court went on to say, however, that the evidence was not sufficient to show, by a preponderance thereof, that the profits of the event were attributable to the use of the name, or that there was any good will for which Collins should be compensated.
The latter finding is challenged by the plaintiff, who denounces it as arbitrary and contrary to all of the evidence. We are unable to agree with this characterization.
It is true that the two witnesses called by plaintiff to testify as to value, as well as the plaintiff himself, placed a value of $5,000 on the plaintiff’s 15% interest in the partnership’s good will. One of the two witnesses was the same Mr. Hamilton who had previously withdrawn as a partner without asking compensation for his interest in the partnership, while the other witness was a race track operator from Salina. It is true, also, there was no other evidence going to value other than testimony by Merrick himself, who stated the National Jalopy Championship was a matter of some value, as an intangible asset, if not weathered out, but the name itself, was not particularly of value.
Despite the testimony offered on the question of good will value, we would hardly be justified in setting aside the trial court’s negative finding. The rule which prevails in this state relative to negative findings is succinctly stated in In re Estate of Winters, 192 Kan. 518, 389 P. 2d 818, as follows:
“An appellate court will seldom set aside a negative finding of a trial court if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason.” (Syl. f 1.)
Further consideration was given to this principle in the recent cases of In re Estate of Curtis, 193 Kan. 431, 394 P. 2d 59, and Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670. In considering the testimony of certain witnesses which, in the Curtis case, was alleged to be uncontradicted, this court said:
“But whatever such testimony might be said to evidence, if credited, it was the function of the trial judge who saw the witnesses and observed their manner and demeanor on the stand, to assess the weight and value of their testimony. And such he must do in the light of all the other facts and circum stances in evidence and occurring at the trial. It was said in In re Estate of Johnson, supra:
“ ‘Appellate courts cannot nullify a trial court’s disbelief of evidence (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.’ (pp. 439, 440.)
“Although a court, as the trier of the facts, may not refuse arbitrarily or capriciously to consider the testimony of any witness, neither is it obligated to believe or accept as true the testimony of any witness, even though it be uncontradicted. (Briney v. Toews, 150 Kan. 489, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.) If the trial court, in its honest opinion, considers testimony to be unreliable it need not give that testimony effect (In re Estate of Johnson, supra). . . .” (pp. 435, 436.)
In the instant case, not only was the trial court in a favorable position to observe the witnesses who testified as to the value of good will, but it had also received evidence that three members of the original partnership venture, including the witness Hamilton, himself, had sought no compensation for partnership “good will” upon their withdrawal from the partnership. This evidence, together with testimony that the partnership possessed no physical property or assets, but used Merrick’s personal equipment, and that the race each year was a gamble, may well have contributed to the trial court’s disbelief of testimony that 15% of the “good will” appertaining to this once-a-year race was worth the substantial sum of $5,000. We believe what was said in Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966 is pertinent on this point;
“. . . We are without power to nullify the disbelief. The effect of defendant’s motion as to the special findings is that there was no evidence to support the disbelief. The position is untenable. The disbelief may have resulted from the demeanor of defendant and his witnesses, and from the very nature of the evidence produced by them. . . .” (p. 602.) (Emphasis supplied.)
The plaintiff advances the further contention that he is entitled to share in the profits arising from the jalopy contests held from 1963 to 1967, inclusive. This proposition is without merit. Inasmuch as Collins contributed nothing to the annual race held in each of those years so far as capital, physical assets or personal services are concerned, the only basis on which he might predicate such a proposal is that his share of the “good will” was being used to stage the races. Thus his argument is unconvincing in view of the trial court’s finding, which we uphold, that the plaintiff had failed to establish the existence of good will possessing substance or value.
A fair statement of the rule applicable to a situation of this kind is set out in 40 Am. Jur., Partnership, § 390, pp. 398, 399:
“The right of a partner to share in the profits earned by the continuation of a partnership business after the dissolution of the firm is founded upon the use to which such partner’s interest in the capital of the firm has been put in earning these subsequent profits, and if the partner claiming an interest in the profits earned after the dissolution of the partnership has no interest in the assets or capital of the firm after dissolution, he is not entitled to share in the profits earned. The same result is reached where the complaining partner’s interest in the capital is negligible. . . .”
See, also, Urzi v. Urzi, 140 C. A. 2d 589, 295 P. 2d 539; Frey v. Hauke, 171 Neb. 852, 108 N. W. 2d 228; and Essay v. Essay, 175 Neb. 730, 123 N.W.2d 648.
The defendant directs our attention to a clause appearing in the 1957 agreement to the effect that no partner, for a period of ten years, should engage in promoting, conducting or managing any other races similar to the National Championship Jalopy Races unless each of the other partners participates therein or should consent thereto in writing. It is argued that this clause held over from the 1957 partnership agreement, becoming a restrictive part of the arrangement made between Merrick, Douglas and Collins in October of 1961.
We deem this clause of no controlling significance in this lawsuit, in view of the trial court’s finding that the original partnership agreement had been terminated. Moreover, the present action is not bottomed on breach of covenant.
No error appearing in the judgment entered by the court below, the same is hereby affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by four common carriers by motor seeking a review of the order of the district court sustaining an order of the State Corporation Commission granting an extension of the common carrier certificate of Beverly Transport. The order extended Beverly Transport’s common carrier route authorizing the transportation of liquid petroleum gas between all refineries and pipeline terminals in Kansas to points and places in Lincoln, Mitchell and Russell Counties, Kansas. Three appealing common carriers are authorized to transport the product in approximately the same area. The fourth carrier (Bridge Brothers) is authorized to transport the product between all points and places west of state highway 14, which covers most of the territory requested by the applicant.
The appellants contend that the evidence was insufficient to show the proposed service would promote public convenience and necessity but rather it did show that the existing common carrier service was reasonably adequate. They further contend that the order of the Commission did not contain adequate findings, and the findings were not supported by substantial and competent evidence.
The conditions under which the Commission may grant or extend a common carrier certificate are stated in K. S. A. 66-1,114 which provides in part as follows:
“. . . If the commission finds from the evidence that the proposed service or any part thereof will promote the public convenience and necessity, the commission shall issue the certificate; otherwise the certificate shall be denied. Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.
The Commission reviewed the testimony of all the witnesses including five for the applicant and found therefrom:
“The testimony of five shipper witnesses from Luray, Lucas, Beloit and Lincoln, Kansas, was substantial and convincing as to the need for and convenience of the proposed service. It indicated in most instances that the shippers were unfamiliar with the service now being performed by protestant carriers with the exception of Kansas Transport Company, Inc., and that most of them had not been called on or solicited by protestants for their business.
“The evidence indicates, and the Commission finds that the applicants have shown that the proposed service is required and that the granting of this application will be consistent with the public interest; that the supporting shipper witnesses testified as to convenience and need of having a driver who was familiar with their base of operations; that they required and will use the proposed service to and from points in the territory covered by the application; that because of their small storage facilities, they depend heavily on truck transportation immediately available to keep their supplies ample; that this need becomes acute and critical in cold weather when speedy service is an absolute necessity to maintain adequate service to the farm and small town homes heated by LPG; and that they believe this need can best be met by applicants due to their being located nearby and being familiar with shippers’ needs and operations.
“The evidence further indicates that the service the applicants will supply is largely an auxiliary source of fuel supply that is needed most when the protesting carriers would be the busiest, and if granted, the authority herein will not result in a diversion of traffic to protestants or an impairment of existing services.
“The evidence indicates and the Commission finds that the public convenience and necessity justifies and requires the extension of service sought, as amended, and that the operations of the applicants would be in the public interest and not contrary thereto, and said application for extension of the certificate of convenience and necessity covering Route 3142 in Docket 33,708 M should be granted, as amended.”
The trial court reviewed the entire transcript and found the order of the Commission to be just and reasonable. Without setting out the testimony we find no difficulty in concluding that the findings of the Commission were supported by competent and substantial evidence when tested by our previous decisions. This court will not weigh the evidence. Neither will it search the record for proof of the ultimate fact. Rs duty is to review the record to determine if the basic findings are supported by any substantial competent evidence.
In Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, we held:
“Where the State Corporation Commission is required as a matter of procedural law to make basic findings of fact in order to support its administrative determination, courts will not search the record to ascertain whether there is evidence from which an ultimate finding can be made. Under the Public Utility Act (K. S. A. Ch. 66) it is the function of the Commission, and not of courts, to find the facts.” (Syl. If 5.)
In Graves Truck Line v. State Corporation Commission, 195 Kan. 82, 402 P. 2d 757, we concluded in ¶ 2 of the syllabus:
“In considering an application for review of an order of the State Corporation Commission the district court may not substitute its judgment for that of the Commission, when the order is supported by substantial competent evidence, merely because the court if it had been sitting as a fact finding body would have arrived at a different conclusion.”
We have approved the rule that accommodation and convenience to the public are the main factors to be considered, absolute necessity for the additional service is not the test. It is sufficient to show that the existing service is not of such a type or character which satisfies the public need and convenience and the proposed service would tend to correct or substantially improve such condition. (Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 380 P. 2d 396.)
The appellants further contend that the order of the Commission did not contain adequate findings.
In Kansas Public Service Co. v. State Corporation Commission, supra, we stated in ¶ 2 of the syllabus:
“The requirement that an administrative agency such as the State Corporation Commission make basic findings of fact is to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agency within its jurisdiction as prescribed by the Legislature.”
We have continued to adhere to that rule. (Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.)
The Commission has fixed a standard for its findings and conclusions. Its rule 82-1-232 provides in part:
“. . . The body of the order shall recite ... a summary of the allegations and contentions of the applicant (or the complainant or the petitioner), a summary of the evidence introduced by the applicant (or the complainant or the petitioner), a summary of all other evidence, a section entitled ‘findings of facts’ listing all facts found by the commission to be true, a section entitled ‘conclusions of law’ containing legal conclusions of the commission, and the directive or mandate of the commission, stated in concise and mandatory language. . . .”
The findings may be lacking as to form but they are sufficient as to substance. We must not expect absolute perfection from our administrative bodies. We stated in Kansas Public Service Co. v. State Corporation Commission, supra, syllabus ¶ 4:
“In making basic findings of fact, the State Corporation Commission is not required to state its findings with such minute particularity as to amount to a summation of all the evidence. It must assume, however, the responsibility of expressing the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the courts, an adequate statement of the facts on all applicable standards which govern its determination, and which persuades it to arrive at its decision.”
A finding of the Commission that additional service is a convenience and necessity is the equivalent to a finding that the existing service is not adequate. (Class I Rail Carriers v. State Corporation Commission, supra.)
Measured by the rules laid down in our previous decisions we are forced to conclude that the findings were supported by substantial competent evidence and the findings are sufficient to support the Commission s order.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal grows out of proceedings in which Hazel M. Johnson, the surviving spouse of Charles W. Johnson, deceased, seeks to avoid the enforcement of an antenuptial agreement and also to strike certain items from the inventory of Charles’ estate as being property belonging to her. From an adverse decision in the district court, Hazel has appealed.
Three questions are presented for our consideration: (1) enforceability of the antenuptial agreement, (2) ownership of a joint checking account in the name of Charles or Hazel "or Survivor,” and (3) whether the executor or surviving widow is entitled to proceeds from crops growing on the homestead at the time of Charles’ death.
The facts are not in serious dispute, most of them having been stipulated to at the pretrial conference in district court.
Charles W. Johnson and Hazel M. Bowers were married April 2, 1961. Charles was nearly seventy-nine years of age, and Hazel was fifty-nine. This was the second marriage for each, their prior spouses having died. Hazel had two children by her first marriage. Both are living and are adults. Charles had five children by his first marriage. Two of them predeceased him and left no surviving heirs. One son predeceased him and left two children. Charles’ two living children and the two grandchildren, along with the executor of Charles’ estate, are appellees here.
On April 1, 1961, the day prior to their marriage, Charles and Hazel executed before a notary public an antenuptial agreement that had been prepared by Charles’ attorney, Mr. William N. Beezley, of Kinsley. Mr. A. L. Moffat, who had acted as attorney for Hazel over a period of years, counseled with and advised her in respect to her rights and obligations under the law, in view of her contemplated marriage to Charles, and further explained to her the terms of the agreement. The agreement generally provided that all property owned by each of them at the commencement of the marriage, or thereafter acquired by either of them during the marriage, should be held and controlled by him or her and be subject to his or her disposition in the same manner and to the same extent as if the proposed marriage had never been celebrated. A further provision was that upon the death of either party, the survivor, because of such survivorship or by way of inheritance, would not have or assert any claim to the property and estate of the deceased party, except in accordance with, and limited by, the following provisions for Hazel:
“It is covenanted and agreed that the said Hazel M. Bowers shall have and receive out of the estate of the said Charles W. Johnson, should she survive him as his widow, the following, to-wit: a distributive share of Kth of the proceeds for distribution of the sale of the following described real estate, to-wit:
(280 acres of land in Edwards county)
as provided by the 5th paragraph of the last will and testament of the said Charles W. Johnson, party of the first part herein, and dated December 28, 1959, and in addition thereto the widow’s statutory allowances from the personal estate of the party of the first part and in addition thereto Kth of the personal estate for distribution on the final settlement of the estate of the party of the first part, as and for the full interest and share of the said Hazel M. Bowers in the estate of the said Charles W. Johnson, should she survive him. It is further agreed that after the marriage of the parties hereto the said Charles W. Johnson, party of the first [part] agrees to make a last will and testament conformably to and in ratification of this agreement and the said party of the second part, Hazel M. Bowers, agrees to consent to the provisions of such last will and testament.
“And the said Hazel M. Bowers hereby relinquishes unto the heirs, devisees, legatees, executors, administrators and assigns of the said party of the first part, any and all her claims, distributive shares, interest, right, title and estate in or to the property and estate of which the said Charles W. Johnson, shall die seized and possessed, except as provided by the terms of this agreement.
“It is further understood and agreed that the said Charles W. Johnson has made full disclosure to the said Hazel M. Bowers of the size, extent and value of his property and estate. And the said Hazel M. Bowers, hereby acknowledges and declares that prior to and in the execution of this agreement, she has had the independent advice of counsel of a competent attorney of her own choosing, employed by herself for the purpose of advising with her in all matters in connection with this agreement.”
The fifth paragraph of Charles’ last will and testament referred to in the agreement provided the executor was to sell the 280 acres, and after the payment of debts, taxes and costs of administration, the balance of the proceeds of the sale were to be distributed to Charles’ two daughters and one son (the latter who predeceased Charles).
After they were married, and until Charles’ death, the Johnsons resided on the land described in the will and antenuptial agreement. During the nearly five years of their marriage Charles failed to execute a new will, as called for by the terms of the agreement, and upon his death on January 4, 1966, his will dated December 28, 1959, and a codicil thereto dated August 4, 1960, were admitted to probate. Mr. Vernon Kephart, cashier of The Macksville State Rank, was appointed and qualified as executor. On April 13, 1966, Hazel filed her election to take under the laws of intestate succession. Thereafter, the executor filed a petition in probate court, setting up the antenuptial agreement, and requesting that the widow’s election to take under the law be set aside and the agreement be enforced in accordance with its terms. In her answer Hazel alleged the agreement was not binding and enforceable because (1) Charles did not execute a new will after their marriage, as called for by the terms of the antenuptial agreement, and (2) that since the parties had established 160 acres of the 280 acres of land as a homestead, which was so claimed by her as the surviving spouse, the provisions of the agreement directing that the 280 acres be sold were rendered inoperative and incapable of enforcement. After a hearing on the petition, the probate court found in Hazel’s favor and refused to set aside her election or enforce the agreement.
Meanwhile, the executor filed an inventory on June 13, 1966, in which were included a checking account, certificate of deposit and promissory note. Hazel’s name had been added to the checking account about four months after the marriage, and at Charles’ death the account reflected a balance in excess of $10,000. The certificate of deposit had been purchased by Charles July 22, 1963, in the amount of $4,000, and was payable to “Himself or Mrs. Hazel M. Johnson.” The promissory note, dated May 21, 1964, was in the face amount of $1,600 and was payable to “Charles W. Johnson or Hazel M. Johnson.”
Subsequent to the filing of the inventory Hazel filed a petition, claiming her statutory allowances and 160 acres of the 280 acres as a homestead, and further requesting the three items above be stricken from the inventory, as well as the landlord’s share of the growing crops on the homestead. The probate court granted Hazel’s petition in its entirety.
The executor and Charles’ heirs appealed both rulings of the probate court to the district court, where, as disclosed by the pretrial order, the parties stipulated and agreed:
“That Hazel Johnson knew and understood the contents of Paragraph 5 of the decedent’s will; that the antenuptial contract dated April 1, 1961, was fairly and understandably made; that its terms are just and equitable, and the amount provided for the widow under the terms of the will and contract is not disproportionate to the estate of the decedent; that the decedent did fully disclose his property to Hazel M. Bowers prior to the execution of the antenuptial contract dated April 1, 1961, and that neither of the parties misrepresented their respective properties to the other; that each of the parties executed the antenupital contract after having received independent legal advice as to their respective rights, and that there was no fraud, misrepresentation, nor overreaching on the part of Charles W. Johnson, the decedent.”
The only testimony offered at the hearing was that of Hazel and the farm tenant. Thereafter, on June 28, 1967, the district judge filed a lengthy memorandum opinion in which he concluded, insofar as relevant to this appeal, (1) the antenuptial agreement was valid and enforceable, and Hazel’s election to take under the law should be set aside; (2) the checking account was not a joint tenancy with right of survivorship account, and any rights of Hazel to the account terminated at Charles’ death; and (3) the executor was entitled to the proceeds from all crops growing on the homestead at the time of Charles’ death. Judgment was entered accordingly, and this appeal followed.
Although not involved here, since appellees have not cross-appealed from any part of the judgment, we note the district court concluded the certificate of deposit and promissory note were held by Charles and Hazel as joint tenants with the right of survivorship and Hazel was owner of each item as the surviving joint tenant.
Hazel’s argument on her contention the antenuptial agreement is void and unenforceable is twofold. She first urges the agreement is a nullity because of Charles’ failure to make a last will and testament “conformably to and in ratification of” its terms. She points to her uncontradicted oral testimony at the district court hearing, wherein she testified that on the day she and Charles signed the agreement, Mr. Beezley told both of them “the agreement wouldn’t be any good unless a new will was made.” This testimony was objected to, but the district judge apparently admitted it to show the circumstances surrounding the transaction. While the admissibility of such testimony may be debatable, the district court apparently gave it no weight or credence, which the court was at liberty to do. (See, Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498; In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352.)
If a contract is clear and unambiguous, which we believe this agreement is, the terms thereof must be construed in such manner as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four comers of the instrument itself. (Wiles v. Wiles, 202 Kan. 613, 452 P. 2d 271; Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269.) Words cannot be read into the agreement which impart an intent wholly unexpressed when it was executed. (Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 452 P. 2d 279.) The result is that where, as here, there is no fraud or mutual mistake, a plain and unambiguous written contract must be enforced according to its terms, and the rights of the parties are governed by the terms of the contract without the aid of parol evidence. (See, In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.)
The thrust of Hazel’s argument is that the antenuptial agreement did not become a valid and binding contract because it was never “ratified” by Charles making a new will. To support her position, Hazel relies solely on In re Estate of Garden, 158 Kan. 554, 148 P. 2d 745, for the proposition that an antenuptial agreement and will constitute one contract, each complementary to the other, and when a husband fails to provide by will that which he agreed, the agreement is void. A review of the facts in that case discloses a sharp contrast from those here. There, the prospective bride signed an antenuptial agreement with her betrothed husband upon his representation and explanation that its purpose was to give him unrestricted freedom to transact his varied and extensive business affairs as he saw fit, and upon his oral promise that he would make a will devising to her a substantial share of his estate, which he accordingly did. Approximately two years after their marriage the husband made a new will which varied substantially from the one he had executed on the eve of his marriage. There was parol evidence regarding the facts and circumstances under which the antenuptial agreement and first will were executed, including the betrothed husband’s assurances to his prospective wife that the two instruments were a part of each other and were not to be changed without her consent. In holding that the widow had the right to elect to take her statutory share of her husband’s estate, and not under the later will, this court said the antenuptial agreement and first will should be read and construed together as complementary instruments constituting one agreement of the parties. The court noted that the antenuptial agreement read by itself gave the prospective bride absolutely nothing. In fact, all of the testimony was to the effect she signed the agreement solely because of the assurances and representations by the prospective husband that she would not be barred from his estate because of the will he was executing. The court further commented on the lack of the essential element of fairness to her in respect to the provisions of the antenuptial agreement unless the will were considered as part of the antenuptial compact between the parties. A further observation noted in the opinion was that had the prospective husband made his representations to her in good faith and believed he could change his will after the marriage, the agreement was not understandingly made; and even if he believed he could later alter his will after the marriage without his wife’s consent, then he perpetrated a fraud on her when he assured her to the contrary. It is apparent that fraud, overreaching, lack of fairness and understanding were significant factors in the case. The antenuptial agreement and will, when read and construed together as one instrument, were materially breached by the husband’s second will, and under all the circumstances, the widow was permitted to elect to take under the law and disregard the antenuptial contract.
Hazel’s attempt to equate her position here with that of the wife in Garden is completely unjustified. For one thing, the antenuptial agreement provided for her to receive a substantial part of Charles’ estate. Further, the parties have stipulated, and the district court found, that Charles dealt fairly with his affianced wife at all times, the agreement was fairly and understandingly made, its terms were just and equitable, the amount Hazel was to receive was not disproportionate to Charles’ estate, there was full disclosure, each party received independent legal advice before executing the agreement, and there was clearly no fraud, misrepresentation, or overreaching.
The well-established rule in this state is that contracts made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intention of the makers, and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions, and are not obtained by fraud or overreaching (e. g., In re Estate of West, 194 Kan. 736, 402 P. 2d 117; In re Estate of Gillen, 191 Kan. 254, 380 P. 2d 357; In re Estate of Ward, 178 Kan. 366, 285 P. 2d 1081; In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483). The rules governing the construction of contracts generally are also applicable to construction of antenuptial contracts. (In re Estate of West, supra; In re Estate of Brown, 189 Kan. 193, 368 P. 2d 27; In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.)
Hazel, in effect, seeks to rescind the antenuptial agreement because of Charles’ purported breach of its terms. Rut the right to rescind a contract is extreme and does not necessarily arise from every breach. To warrant rescission, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement. A breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of a contract, does not warrant a rescission. (Baron v. Lyman, 136 Kan. 842, 18 P. 2d 137; 17 Am. Jur. 2d, Contracts §504; 17A C. J. S., Contracts §422 [1]; Corbin on Contracts §1104.)
In respect to the right of a party to rescind an antenuptial agreement, we find the following statement from 41 Am. Jur. 2d, Husband and Wife § 293, which was quoted in substantial part in In re Estate of Ward, supra:
“The general rule is that where parties enter into an antenuptial agreement, each must perform the terms and conditions of that agreement before he or she can claim the benefits to be derived therefrom. However, the rule that equity will not compel a rescission where there has been partial performance has been applied to a marriage settlement where the marriage has occurred but the claim is made that other considerations, such as to be a kind and dutiful spouse, to use property for the joint benefit of the spouses, and to take care of the other spouse in old age, have not been complied with. It has been held that since marriage is a consideration that cannot be restored, covenants in a marriage settlement or agreement are independent, and failure of their performance by one party does not defeat his or her right to performance by the other, if the former is willing and can perform or the latter has a right to damages for the breach, . . .”
(Also, see, 41 Am. Jur. 2d, Husband and Wife § 310.)
One of our early cases, Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, rehearing denied 88 Kan. 72, 127 Pac. 764, while factually not on all fours, is strongly indicative of the reluctance of courts to rescind or deny specific performance of an antenuptial agreement in the absence of fraud or other equitable considerations. There, an antenuptial contract provided by its terms that the prospective wife waived all right, title, interest and inheritance in property of her intended husband in consideration for his agreeing to convey to her by deed two pieces of real estate to be her sole property. The husband failed to execute the deed as promised. This court held that under the circumstances, where there was no deceit or fraud, the agreement vested equitable title to the real estate in the wife, and the failure of the husband to execute the conveyance did not prevent the enforcement of the agreement.
Similarly, in In re Estate of Ward, supra, the parties had executed an antenuptial agreement providing that the intended husband was to purchase a home for his future wife to live in for the rest of her life in the event he predeceased her. The husband died eighty-three days after the marriage and before a home could be purchased. The widow requested that she be permitted to take under the law, and sought to set aside the antenuptial contract for various reasons, including its execution had been obtained by fraud, and that the decedent had failed to comply with the provisions regarding the purchase of a home. The court held there was no proof of fraud, the contract was not void for lack of consideration, and that the decedent’s failure to fulfill his promise to buy a home during his lifetime, standing alone, was insufficient to invalidate the contract or render it unenforceable.
For cases from other jurisdictions holding that in the absence of fraud a wife is not entitled to rescind an antenuptial agreement, although the husband has failed to perform a covenant thereof, see, Wellington v. Rugg, 243 Mass. 30, 136 N. E. 831; Cantor v. Cantor (Ohio), 174 N. E. 2d 304; In re Eisner's Will, 15 Misc. 2d 361, 181 N. Y. S. 2d 327.
Under the facts here we are unable to say that Charles’ failure to execute a will in conformity with the provisions of the antenuptial agreement was a substantial or fundamental breach going to the very heart of the agreement. Indeed, his failure to make a will did not defeat the object of the parties in making the agreement in the first place. When the parties entered into the agreement, Hazel had no intention of receiving anything more from Charles’ estate than was provided for her in the agreement. In contrast with the facts in Garden, had Charles made a will conforming to the provisions of the agreement, Hazel would have received the same portion of his estate as provided for her in the agreement. Hazel’s rights, whether derived from the antenuptial agreement or from a later will embodying the provisions of the agreement, were identical. We subscribe to the statement of the district judge in his memorandum decision that
“. . . it [the contract] said the will was to conform to the contract, and was to be in ratification of the contract. A will doing only those things would have been sufficient to meet the terms of his contract; so in reality the making of a new will would be surplusage.”
The second part of Hazel’s argument on the unenforceability of the antenuptial agreement concerns the sale of the 280 acres of real estate subject to her homestead rights in 160 acres thereof. She does not question the legality of such a sale; her main complaint is that the sale price of the land subject to her homestead would be seriously depressed, thus defeating what was contemplated by the provisions for her benefit contained in the antenuptial agreement.
The appellees concede Hazel is entitled to her homestead rights; hence, we do not have the issue of whether she waived those rights under the terms of the antenuptial contract. (See, In re Estate of Neis, 170 Kan. 254, 225 P. 2d 110; In re Estate of Place, 166 Kan. 528, 203 P. 2d 132.)
As a general rule, in order for impossibility of performance to constitute a ground for rescission, it must clearly appear that the only performance possible would be essentially different from that promised in the contract. (17 Am. Jur. 2d, Contracts § 506.) A close examination of the terms of the antenuptial agreement discloses that no specific reference was made in regard to Hazel’s right to claim a homestead in the event Charles predeceased her. Other than the general provisions in the agreement whereby Hazel relinquished all claims, interest, right and title in or to the property and estate of Charles, except as provided in die agreement, no attempt was made to bar her from claiming a homestead in the event she and Charles established one on the real estate in question after their marriage. Indeed, we have said homestead rights of the wife cannot be affected by an antenuptial agreement. (In re Estate of Neis, supra; In re Estate of Place, supra.) Had Charles later made a will providing for Hazel, in accordance with the terms of the agreement, and Hazel had consented thereto, she would not have waived her right to the homestead unless it clearly appeared from the will that the provisions therein made for her were intended to be in lieu of such rights. (K. S. A. 59-404.) Since the appellees raise no question to the contrary, we may safely assume that at the time the antenuptial agreement was entered into, Hazel’s right to any future homestead was intended to remain unfettered.
The antenuptial agreement provided that in addition to one-fourth of the proceeds from the sale of the real estate Hazel was to receive her widov/s statutory allowances and one-fourth of Charles’ personal estate. The parties agree the terms of the agreement were just and equitable, and the amount provided for the widow was not disproportionate to Charles’ estate. The agreement gave Hazel a substantial portion of the estate in addition to the homestead rights granted her by law. (See, In re Estate of Hilliard, 172 Kan. 552, 241 P. 2d 729.) She, of course, could, at Charles’ death, have relinquished the homestead, but this she did not choose to do. For that matter, if Hazel could, and did, waive all homestead rights by the terms of the agreement, she now, by claiming her homestead, is receiving more than was originally contemplated. In our view of the situation, Hazel is in no position to urge the sale of the land subject to her homestead will defeat the object and purposes of the agreement and justify its rescission.
Hazel advances other arguments, but none of them is helpful to her cause and will not be discussed. We hold that she is not entitled to rescind the antenuptial agreement and be relieved from its provisions. Charles’ heirs and the executor of his estate stand ready to perform the terms of the agreement. The district court properly determined the agreement was enforceable and Hazel is entitled to receive the share of Charles’ estate in accordance with those terms.
Hazel next asserts the district court erred in determining the checking account was not a joint tenancy account, title to which passed to her as the surviving joint tenant at Charles’ death. The record reveals that at the time of the marriage Charles maintained a checking account in The Macksville State Bank. According to Hazel’s testimony, about three weeks after their marriage Charles took her to the bank and told the bank officials to honor her checks on his account. In August 1961, Charles and Hazel again went to the bank and Charles advised the officials he wanted his account changed to a “joint account.” On this occasion they signed a signature card. Except for one small social security check of Hazel’s, all other deposits to the account were made with Charles’ money. Hazel wrote numerous checks on the account, both before and after the signature card was executed.
The card was entitled “Depositor’s Contract and Signature Card,” with printed provisions and appropriate spaces on both sides. The front side pertained to the “Signature Card” portion of the instrument. A typewritten notation “Johnson, Chas W. or Hazel Johnson or Survivor” appeared in the upper right-hand corner. There followed a provision that the bank was authorized to recognize any of the signatures “subscribed below” in payment of funds or the transaction of any business for the account. Four types of accounts were shown, with an appropriate box to be checked after each one. A typewritten “X” had been inserted after the word “Joint.” Following were the signatures of “Chas W. Johnson” and “Hazel Johnson.” Near the bottom of the front side of the card appeared the words “Depositor’s Contract,” followed by seven paragraphs in small print, which continued to the back of the card. One of these paragraphs referred specifically to “Joint Accounts” and provided that all sums on deposit or later deposited by either or both of said joint depositors, were to be owned by them jointly, with right of survivorship, and were subject to check or receipt of either of them or the survivor of them. Directly following the last provision of the “Depositor’s Contract” on the back of the card appeared the statement, “The terms of the above contract have been read and are hereby agreed to by owner of account.” Following were two signature lines which were not signed.
The district court, after noting the contract portion of the card was not signed, found that Hazel’s name was added only for Charles’ convenience and not with the intent to give her a half interest or joint tenancy with survivorship interest in the account. The court concluded that inasmuch as á joint tenancy must be established with clarity and certainty under the requirements of K. S. A. 58-501, Hazel’s claim must fail and any rights she had to said account terminated upon Charles’ death.
Hazel contends that under Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647, 85 A. L. R. 275, and Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139, a joint tenancy account with right of survivorship was clearly established.
Whether or not a joint tenancy bank account is created in the name of a depositor and another must be determined on contract principles. (In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.) If the depositor executes an account signature card which contains as part of its provisions an agreement in clear and unambiguous language that a joint tenancy account with the right of survivorship was intended, then such an account is created and the agreement is enforceable according to its terms. In such case, the signature card constitutes a contract in writing between the depositor and the bank, and parol evidence of an understanding at variance with its terms cannot be considered. (In re Estate of Smith, supra; Simonich, Executrix v. Wilt, supra.) When, however, the language of the written instrument signed by the depositor is uncertain or ambiguous, parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the instrument is admissible in order to clarify the intention of the depositor at the time of the creation of the account. We have held that when a two-party account is opened without the use of a signature card or an instrument in writing signed by the depositor, a valid joint tenancy account between the depositor and bank may nevertheless be proved by parol evidence if the terms of the agreement clearly disclose that a joint tenancy was intended to be established. The all-important thing is the clarity with which the intent of the de positor is expressed at the time the transaction is initiated. (Edwards v. Ledford, 201 Kan. 518, 441 P. 2d 834, and authorities therein cited.)
Here, the “Depositor’s Contract” portion of the card was not executed, so we do not have a signed written instrument containing express language which otherwise would be sufficient to create a joint tenancy account. Charles and Hazel signed only the “Signature Card” portion of the instrument. This portion contained a check mark after “Joint” account. Absent is any language in conjunction with “Joint” account to indicate the parties intended to incorporate the provisions relating to “Joint Accounts” appearing in the “Depositor’s Contract” on the back of the instrument. The typewritten notation “Johnson, Chas W. or Hazel Johnson or Survivor,” even if considered as a written memorandum of some oral agreement or arrangement pursuant to which the account was established, is inconclusive as to the true intention of the parties or the terms of any agreement. (Edwards v. Ledford, supra.) This court has said that similar language, when measured by the requirements of K. S. A. 58-501, is not sufficiently clear to establish a joint tenancy with right of survivorship. (Miller v. Higgins, 188 Kan. 736, 366 P. 2d 257; Riggs v. Snell, 186 Kan. 355, 350 P. 2d 54; In re Estate of Swingle, 178 Kan. 529, 289 P. 2d 778.) We deem the language of the “Signature Card” portion of the instrument here to be uncertain and ambiguous, and resort must be had to parol evidence in an effort to ascertain the intention of the depositor.
The parol evidence here is scant, to say the least. There was only Hazel’s testimony that Charles told the bank officials “to make it in a joint account.” In our opinion, the words “joint account” standing alone without further explanation do not imply a true joint tenancy was intended to be established. There was no testimony by any bank official or employee concerning the circumstances surrounding the transaction — such as an explanation to Charles and Hazel of the legal significance of a joint account, or the customary practice of the bank at that time in creating a joint tenancy account. The proof in the instant case falls far short from that in Edwards v. Ledford, supra, and Malone v. Sullivan, supra. In the latter case all the parties, including the banker, orally agreed that the account should be opened as a joint account with the right of survivorship. The case here is more analogous to Miller v. Higgins, supra, which is discussed in detail in the Edwards opinion. The finding of the district court that the bank account was not a joint tenancy account with right of survivorship and that any rights of Hazel to the account terminated at Charles’ death must be sustained.
Hazel further asserts the district court erred in holding the executor was entitled to the proceeds of the crops growing on the homestead at the time of Charles’ death. Her argument essentially is that the law of this state does not contemplate an executor or administrator is entitled to any part of the homestead, including the growing crops, in opposition to the widow. The appellees, on the other hand, seek to uphold the decision of the Jower court by relying on K. S. A. 59-1206, which provides:
“Annual crops, whether severed or not from the land of the decedent at tire time of his death, shall be deemed personal assets in the custody of the executor or administrator and shall be inventoried and administered as such.”
The precise point apparently has never been decided by this court.
Our homestead laws, although stemming from Article 15, § 9, of the state constitution, embrace not only the constitutional provision but also the various statutes enacted by the legislature for the purpose of carrying the constitution into effect. The homestead clause of the constitution does not in express terms provide any homestead rights after the death of the owner. Even before the enactment of legislation on the subject, this court, by judicial decision, held the homestead retained its exempt nature as long as members of the owner’s family continued to dwell thereon after his death (Cross v. Benson, 68 Kan. 495, 75 Pac. 558); and by various statutes, culminating with K. S. A. 59-401, the legislature has expressly extended such exemption, upon the death of the owner, to his surviving spouse and children.
Early in our decisions we made clear the legislature could enact legislation extending the homestead right beyond that guaranteed by the constitution, “so long as the extent of the homestead shall be in accordance with sound policy and humanity, and no greater than shall be reasonably necessary to protect the citizens in their pursuits necessary to their existence and well being.” (Cusic v. Douglas and others, 3 Kan. 123, 133.) The only constitutional limitation was that the legislature could enact no law restricting the homestead right guaranteed by the constitution. (Towle v. Towle, 81 Kan. 675, 107 Pac. 228.)
The policy of this state has always been to zealously protect the family rights in homestead property, and this court has liberally construed the constitutional and statutory provisions relating to homesteads in such manner as to safeguard their humanitarian and sound social and economic purposes. (State, ex rel., v. Mitchell, 194 Kan. 463, 399 P. 2d 556; Watson v. Watson, 106 Kan. 693, 189 Pac. 949; Weaver v. Bank, 76 Kan. 540, 94 Pac. 273; Cross v. Benson, supra.) We have said that the surviving spouse and minor children are entitled to the rents and profits from the homestead, such rents and profits being incidents to the right of full occupancy and enjoyment of the premises. (Campbell v. Durant, 110 Kan. 30, 202 Pac. 841.) In a similar vein, we held in Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133, that annual crops growing on a homestead were exempt from sale on execution against the owner, stating:
“. . . The purpose of the homestead exemption is to provide a place in which a debtor and his family may live and to provide a place on which he can raise food for his family without interference by creditors. If crops sown by the occupant of a homestead be levied on and sold while they are growing, one of the purposes of the homestead exemption will be defeated.” (p. 444.)
(Also, see, 40 C. J. S., Homesteads § 70b.)
Construing the homestead statute in the liberal manner to which it is entitled, we perceive no valid reason to distinguish the situation here from that in Isely. There, a judgment creditor sought to levy against crops growing on the living owners homestead. Here, we have a surviving spouse who is, without question, entitled to the homestead exemption extended to her by the statute (59-401). If growing crops are protected by the homestead exemption in the case of the living owner, they should enjoy the same status in the hands of the surviving spouse, who continues to occupy the homestead, to the exclusion of the executor or administrator, free from the claims of creditors.
We are of the view that in spite of the broad provisions of K. S. A. 59-1206, the legislature did not intend the surviving widow occupying the homestead be deprived of crops growing thereon at the time of her husband’s death. To hold otherwise would cast serious doubt on the validity of the statute as an effort by the legislature to infringe upon the enjoyment of the homestead right guaranteed by the constitution. A statute should, if reasonably possible, be so construed as to uphold its constitutionality. (Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772.) Although the statute makes no exception to annual crops on the homestead at the date of death, a cursory examination of other statutes in the probate code fortifies our conclusion that growing crops are beyond the reach of the decedent’s personal representative and are not within the purview of the statute. K. S. A. 59-1401 provides the executor or administrator shall have a right to the possession of all property of the decedent except the homestead and allowances to the surviving spouse and minor children. In respect to setting apart the homestead and statutory allowances, K. S. A. 59-2235 directs that the property so set apart shall be delivered by the executor or administrator to the persons entitled thereto, and shall not be treated as assets in his custody.
Appellees maintain that since heirs and devisees are not entitled to crops growing on the land of the decedent at the time of his death (see, 2 Rartlett’s Kansas Probate Law and Practice, § 763 and cases cited therein; Anno. 92 A. L. R. 2d 1373), neither is the surviving spouse claiming the homestead entitled thereto. In view of the sanctity accorded the homestead during the owner’s life, and also during its continued existence while occupied by the surviving spouse, the attempted analogy is unfounded.
Our research has disclosed that in Mahoney v. Nevins, 190 Mo. 360, 88 S. W. 731, crops growing on the property at the time of the death of the husband were held to belong to the surviving wife under a statute which gave the survivor the right to the exclusive possession of the premises.
For the reasons stated, we hold that Hazel was entitled to the proceeds of the crops growing on the homestead at the time of Charles’ death, and the district court’s order to the contrary was erroneous.
The judgment of the lower court in respect to the growing crops is reversed, and the remaining portions of the judgment are affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is a workmen’s compensation case and is before this court the second time as a result of the appeal of the claimant, Glenn H. Piper, from the findings and judgment of the district court entered on July 3, 1968.
The first appeal, Piper v. Kansas Turnpike Authority, 200 Kan. 438, 436 P. 2d 396, involved the question of the district court’s refusal to permit the claimant the right to use corrective lens in determining the loss of vision to the claimant’s left eye. In reversing the district court’s judgment, and under the facts and circumstances presented, this court held that where an injured workman sustains the loss of an eye industrially blind with naked vision, but normal with correction, the valuation of industrial visual loss, for the purpose of determining the amount of compensation due, shall be based on visual efficiency findings which are made with the aid of corrective lenses; the loss being the difference between the corrected vision before the injury and the corrected vision after the injury.
Rased upon the foregoing holding, the court’s opinion stated:
“. . . This requires a reversal of this cause. Since the district court has not determined from the record whether the claimant’s disabling injury is permanent in nature, and if so, whether such impairment is total or partial in character, it is necessary to remand this case to the district court to make findings based upon the evidence and determine the amount of compensation, if any, due the claimant.
“In reviewing the record, the district court should be guided by what was said and held in Polston v. Ready Made Homes, 171 Kan. 336, 232 P. 2d 446, and Justice v. Continental Can Co., 174 Kan. 539, 257 P. 2d 564, and whether, as a result of the accidental injury to the claimant’s left eye on December 13, 1963, together with the previous disability of the claimant’s right eye, he became totally disabled.” (1. c. 445.)
The cause was reargued before the district court and on July 3, 1968, it concluded that Polston v. Ready Made Homes, 171 Kan. 336, 232 P. 2d 446, and Justice v. Continental Can Co., 174 Kan. 539, 257 P. 2d 564, applied only to total disability, and determined the claimant did not suffer total disability and found he was limited to an injury to the one eye without regard to the eye that had been eviscerated prior to the accident. The findings of the district court are quoted in toto:
“1. That the claimant, on December 13, 1963, sustained an accidental injury to his left eye and a hernia and such injuries rose out of and in the course of his employment with the respondent.
“2. That the two subsequent retinal detachments sustained by the claimant were connected with the original accident.
“3. That claimants average weekly wage was $131.77.
“4. That as a result of an operation performed on May 25, 1963, the claimant’s right eye was eviscerated prior to December 13, 1963, which evisceration destroyed all sight therein.
“5. That immediately prior to December 13, 1963, vision in claimant’s left eye was correctible to Snellen 20/20 for distant vision and Jaeger-1 for near vision.
“6. That subsequent to the operations made necessary by the additional retinal detachments sustained by the claimant, his vision of the left eye was corrected to Snellen 20/70 for distance and Jaeger-7 for near vision. Applying Director’s Rules, claimant’s remaining visual acuity at 20 feet measured as 20/70 is a loss of 45% while Jaeger-7 is a loss of 37.625% and giving twice the weight to the short measurement results in a figure of 75.35%, to which is added the 45% loss for distance, maldng a total 120.35%. This figure, divided by 3, gives a final figure of 40.11% as claimant’s permanent partial loss of vision of the left eye.
“7. That claimant denies he is totally disabled as a result of the accident of December 13, 1963, and the subsequent retinal detachments, and claimant’s doctor confirms this. Therefore, it is found that he is not totally disabled.
“8. That claimant’s doctor’s report indicates that claimant can do some types of work, and this condition has existed since June 6, 1964, and hence he is employable.
“9. That claimant suffered temporary total disability from December 13, 1963, to June 6, 1964, amounting to 25 weeks of which 24 weeks is compensable at the rate of $42.00 per week.
“10. That claimant did not coincidentally and industrially sustain a permanent partial visual efficiency loss to each eye, and therefore Director’s Rule 51-8-7 is not applicable.
“11. That although industrial blindness existed in the right eye prior to the injury, claimant has not sustained complete loss of vision of the left eye, and therefore Director’s Rule 51-8-9 is not applicable.
“12. That the injury and disability suffered by the claimant is covered by K. S. A. 44-510 (3) (c) (17) and (21), hence fhe provisions of K. S. A. 44-510 (3) (c) (24) are not applicable.
“13. That inasmuch as claimant admits he is not totally disabled, and this Court finds that the claimant is not permanently totally disabled, therefore the provisions of K. S. A. 44-510 (3) (c) (26) are not applicable.
“14. That claimant sustained no permanent disability as a result of the hernia received in the accident in question.
“15. That respondent and insurance carrier have paid compensation for the period of 64 weeks at the rate of $42.00 per week, of which 24 weeks was for the temporary total disability of the claimant.
“16. That claimant has suffered permanent partial loss of vision of fhe left eye of 40.11%, for which he is due compensation for 48.13 weeks at the rate of $42.00 per week, in the total amount of $2,021.46, of which respondent and insurance carrier have paid 40 weeks at $42.00 per week, in the total amount of $1,680.00, and there remains due the sum of $341.46.
“17. That respondent and insurance carrier are responsible for medical attention incurred by the claimant as provided in Director’s Order of the 20th day of June, 1966, and made a part hereof as if fully set forth herein.”
The claimant’s evidence consisted of his own testimony and that of Dr. James E. Hill, a highly qualified ophthalmologist. It is unnecessary to summarize the evidence before the district court since that was done in the first appeal, and the reader is referred to that opinion. However, to bring the question presented into proper focus, a brief resumé of the condition of both of the claimant’s eyes and the loss of visual acuity, follows:
On September 15, 1962, the claimant underwent a series of operations for the removal of cataracts from both eyes. The operation on the right eye was not successful, the eye became painful, and on May 25, 1963, it was eviscerated which removed all vision. The operation on the claimant’s left eye was successful, and with the aid of corrective lens the left eye was corrected to 20/20 for distant vision and Jaeger-1 for near vision, the equivalent of Snellen 14/14.
Thereafter, and on December 13, 1963, and in the course of his employment, the claimant sustained the first of a series of retinal detachments to his left eye, which were corrected by a series of operations. With the aid of corrective lens the left eye could be corrected to Snellen 20/70 and Jaeger-7, or a permanent partial loss of vision to the left eye of 40.11 percent. The claimant can now only identify a person at twelve feet and can only read with the aid of a magnifying glass. The medical testimony was that claimant’s eye was quiescent, and its condition could not be expected to improve.
At the hearing on remand and on July 3, 1968, the district court found that the claimant denied he was totally disabled as a result of the accidental injury and the subsequent retinal detachments; that the claimant’s doctor confirmed that condition by his testimony; that the claimant sustained a permanent partial disability to his left eye of 40.11 percent by the use of corrective lens; that based upon the doctor’s medical report indicating the claimant could do some types of work, the claimant was employable, and that the provisions of K. S. A. 44-510 (3) (c) (17) and (21) were applicable in determining the amount of compensation due the claimant. In harmony with its findings, the district court entered judgment against the Kansas Turnpike Authority and its insurance carrier in the amount of $341.40 remaining due for 40.11 percent permanent partial loss of vision of the left eye and medical expenses paid by the claimant.
In making its findings and rendering judgment, the district court distinguished the instant case from the Polston and Justice cases, on the ground the claimants in those cases were found by the district court to be permanently totally disabled, whereas here the claimant was found to be only partially disabled. The conclusion that the claimant was not totally disabled was based upon the finding he was employable and his denial he was totally disabled.
As indicated, the district court found that the disability suffered by claimant was a scheduled injury and covered by K. S. A. 44-510 (3) (c) (17) and (21). It is unnecessary to quote the foregoing subsections of the Workmens Compensation Act since it is clear the legislature intended the schedule for compensation therein provided was for the loss of, or partial loss of, the sight of one eye. Where a workman has previously lost the sight of one eye and sustains an industrial injury to his remaining eye resulting in the loss of visual acuity, he does not sustain the loss of, loss of use, or loss of vision in one eye, but, rather, sustains the loss of vision itself. Thus, where an injury produces the loss of vision such as the record discloses the claimant lost by reason of the evisceration of his right eye and the loss of 40.11 percent vision in his left eye, he sustains the loss of binocular vision which is not provided for in the schedule prescribed in 44-510 (3) (c) (17) and (21).
This court is committed to the rule of liberal construction of the Workmen’s Compensation Act in order to award compensation to workmen where it is reasonably possible to do so and to make the legislative intent effective and not to nullify it. (Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494.) Since the claimant’s injury is not compensable as a scheduled injury pursuant to 44-510 (3) (c) (17) and (21), we look to other provisions of the Act to determine the manner and amount of his compensation for the loss of binocular vision. For reasons hereafter stated, we are of the opinion that under the record in this case, the district court erred in not awarding compensation pursuant to 44-510 (3) (c) (26) where the effect of the industrial injury together with the previous disability resulted in total permanent disability to the claimant. That section reads:
“If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said workman shall be the difference between the amount provided in the schedule of this section for his prior injury and the sum total which would be due said employee for such total disability computed as provided in section 44-511 of the General Statutes Supplement of 1961 and any amendments thereto, but in no case less than seven dollars ($7) per week nor more than forty-two dollars ($42) per week.”
As used in the statute, total permanent disability of a workman results where the loss of visual acuity to the remaining eye is of such a degree that his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured. (Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414.) All our cases involving eye injuries to claimants, such as here presented, with the exception of Moore v. Western Coal and Mining Co., 124 Kan. 214, 257 Pac. 724, which was expressly overruled in Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48, are to this effect.
The Stevens case construed the provisions of the Act which is now 44-510 (3) (c) (26). There, the claimant suffered an accidental injury to his left eye, and had been almost blind in his right eye since childhood. Compensation was awarded pursuant to what is now 44-510 (3) (c) (26). The award was affirmed by the district court and there was no appeal. Later the employer sought modification of the award. In denying the relief sought, it was said that neither the examiner, nor the district court, nor the supreme court could say from the record that the disability of the workman had diminished. In the opinion it was said:
“. . . Here the accident causing the injury did not really injure both eyes. It only injured one eye. The total disability is not on account of the injury alone. It is on account of the injury together with the condition of the other eye, which is not due to the injury at all.” (1. c. 444.)
In Masoner v. Wilson & Co., 141 Kan. 882, 44 P. 2d 265, the sight of the claimant’s right eye was tantamount to industrial blindness which existed from the date of his birth. He sustained an injury to his left eye in the course of his employment and with very strong lens he might be able to have 40 percent vision for close work and 76.5 percent for distance. The award was based upon R. S. 1933 Supp. 44-510 (3) (c) (24) which is now K. S. A. 44-510 (3) (c) (26). It was stated the district court was of the opinion that the type of glasses claimant would be compelled to wear would be of such a handicap that they could not enable him to engage in industry. It was further stated:
“. . . Respondent offered no evidence to the effect that claimant would be industrially useful with glasses. He had inquired of respondent’s representa tive about his job and was told he had no job. He was not told that he would be given work if he had glasses, nor did respondent offer to provide him glasses. The trial court therefore found that the accident which claimant received resulted in a total permanent disability. There is substantial evidence to sustain this finding.
“. . . There should have been an allowance on the award as though the right eye had previously been injured by accident in an industry, and 110 weeks should have been deducted from the 415 weeks for permanent total disability. . . .” (1. c. 884.)
The cases of Polston v. Ready Made Homes, supra, and Justice v. Continental Can Co., supra, are to the same effect, awarding compensation pursuant to what is now 44-510 (3) (c) (26) based upon a finding of permanent disability of the workman.
The finding of total permanent disability in each of the foregoing cases was based upon a workman s previous loss of sight of one eye and of a subsequent industrial injury to the remaining eye resulting in the loss of visual acuity to such a degree that the workman’s ability had been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.
This brings us to the question, is there substantial evidence in the record to support the district court’s finding that the claimant was employable. In determining this question, the court has examined the record in the first appeal of this case as well as the record in the instant appeal. In the first appeal, the claimant’s narrative statement of the evidence, to which the appellees expressed no objection, was that the claimant was fully able to perform all his work prior to the fall and the detachment of the retina which was directly traceable to the fall, and after his fall he became unemployable because of the loss of vision in his left eye. Based on that evidence, this court said:
“Prior to his injury, the claimant had corrected normal vision in his left eye- and he was able to perform his work in a usual and satisfactory manner . . . Following the injury and the ensuing operations, he sustained a partial loss-of vision in the left eye and all means of correcting the eye to normal vision. He is completely unable to perform the work he was doing prior to the injury,. and can only see figures ten to twelve feet distant and is required to read with the aid of a magnifying glass . . .” (1. c. 443.) (Emphasis supplied.)
The record in the instant appeal was prepared in accordance-with Rule No. 6 (c) of this court. The claimant filed with his designation a narrative statement of the testimony he designated to be included in the narrative form to the effect that claimant was- fully able to perform all his work prior to the fall and after the fall he became unemployable because of the loss of vision in his left eye. The appellees agreed to the claimant’s statement of the facts in this case, except they objected to his narrative testimony that after the fall and injury in question, the claimant became unemployable because of his loss of vision in his left eye. Pursuant to Rule No. 6 (c) the appellees designated the following as the narrative statement of Dr. Hill’s testimony with respect to the employability of the claimant:
“Claimant’s visual acuity is not adequate for many things; however, he is able to move about adequately and to read with a magnifying glass.”
And,
“At the present time Mr. Piper’s eye is quiescent, no evidence of retinal detachment at this time. Patient’s visual acuity is not adequate for many things. However, he is able to move about adequately and to read with a magnifying glass . . .”
While the record in this appeal contains question and answer testimony of the claimant, no question and answer testimony of Dr. Hill was abstracted, and with the exception of his statement that the condition of the claimant’s eye could not be expected to improve, the foregoing is all of the medical testimony dealing with the claimant’s employability. It should also be noted that Dr. Hill’s report referred to by the district court in its finding No. 8 to the effect that such report indicates the claimant can do some types of work likewise was not included in the record and affords this court no opportunity to review the evidence in support of that finding.
The claimant was maintenance foreman on one of the turnpike crews and his main duties were to fill holes, clean out ditches, remove dead animals and obstructions from the highway. He supervised all maintenance and care of utility problems at the service areas. He had an office in Wellington where he performed the duties of making reports, keeping time of the men and of materials used in maintenance procedures. After his injury and with the aid of corrective lens, he could only identify persons at twelve feet distance and was required to read with the aid of a magnifying glass.
This court is of the opinion the record presented by both parties does not support the district court’s finding that the claimant was employable. On the contrary, it clearly discloses that the claimant was fully able to perform all his work prior to the injury and because of the loss of vision in his left eye, his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured. (Puckett v. Minter Drilling Co., supra.) In answer to the question, “[a]re you able to perform any work at the present time,” the claimant answered, “[n]o, sir.” The claimant stated in his brief the uncontradicted testimony was that he was not working, that he could not return to his previous work, and had not worked since the date of the accident.
Neither do we read the record that the claimant contended he was not totally disabled. The claimant contended in the district court that because of the permanent loss of vision in the left eye of 40.11 percent and being totally blind in his right eye, he was entitled to 55.08 percent general bodily disability pursuant to Director’s Regulation No. 51-8-9 of not to exceed the statutory limit of 415 weeks; that his average weekly wage was $131.77; that 55.08 percent of this was $72.58 and 60 percent of which was $44.14; that the maximum compensation allowed under the Act is $42 per week and that the claimant should be awarded compensation for 415 weeks less 62 weeks already paid at the rate of $42 per week. The contention was the result of the misapplication of the facts of the case to rules of the Director of Compensation and pertinent provisions of the Workmen’s Compensation Act, and in effect was an attempt to avoid the deduction of 120 weeks of compensation provided in the schedule for his prior injury. (Poehlman v. Leydig, 194 Kan. 649, 400 P. 2d 724.) A claimant in a workmen’s compensation case should be awarded compensation under the pertinent provisions of the Act as the facts entitle him to even though he has misconceived their legal effect.
The record discloses the claimant was unemployable; that the condition of his left eye could not improve and that he was unable to procure work of the same type and character he was able to perform prior to the injury. On the record, the district court should have entered judgment in favor of the claimant pursuant to 44-510 (3) (c) (26) and based the award on 415 weeks less 120 weeks, or 295 weeks at the rate of $42 per week, less compensation already paid. The judgment is reversed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in an action brought pursuant to K. S. A. 79-2005 to recover ad valorem taxes paid under protest for the year 1965 on oil and gas leases.
Plaintiffs are associated together as a partnership under the firm name of Pickrell Drilling Company and engage in the business of oil production in Kingman County, Kansas. The instant action involves 43 of its producing leases. During the month of February, 1965, the plaintiffs received from the Kingman County assessor rendition forms for reporting the value of their leases and the “1965 Oil and Gas Assessment Schedule.”
One of the plaintiffs, Dale Robinson, a petroleum engineer, made an appraisal of the properties and arrived at an opinion of value of the properties for the year 1965 by using what he suggests as the ordinary and recognized engineering methods of valuing oil producing properties. He claimed to be confused by the 1965 assessment schedule and therefore an affidavit of Robinson’s appraised value was attached to the rendition form and arrangements made for a meeting with the county assessor of Kingman County. The county assessor informed plaintiffs that he would correct the rendition to conform to the 1965 Oil and Gas Assessment Schedule, which he did. Plaintiffs then appealed to the County Board of Equalization where they were informed that the 1965 schedule would be followed strictly.
Plaintiffs next filed an appeal with the State Board of Equalization. A hearing was held and evidence submitted. The final order of the Board’s adjustment reduced the assessed valuation of five leases, although no particular reason or pattern was disclosed in making the reductions. Under the order of the State Board of Equalization, the 100% justifiable value of the leases was set at $4,426,333.29 as contrasted with plaintiffs’ claim of a value of $3,611,360.00. The assessed valuation was then fixed at 30% of the Board’s value or $1,330,900.00. The plaintiffs paid the first half of the 1965 taxes and filed a protest with the treasurer of Kingman County. The protest alleged that the correct justifiable value of the leases should have been determined at $3,611,360.00 and the assessed valuation should have been calculated on a ratio of 20%.
In due time the plaintiffs instituted the present action. At the close of the hearing the trial court submitted complete and com prehensive findings of fact and conclusions of law and denied the plaintiffs’ request for relief. Hence this appeal. There was also a cross-appeal which need not he considered because of the conclusions reached on original appeal.
Before we reach the case on the merits, there are two alleged trial errors which require attention.
The plaintiffs joined as defendants all of the school districts, townships and one hospital district making a levy upon the leases in controversy. On motion of such defendants, the trial court dismissed them from the action.
The plaintiffs appear to have joined these defendants and raised the question of their dismissal on appeal rather as a matter of precaution than a desire to have them parties in the case. They state:
“. . . The said defendants were joined by plaintiffs because under the language of Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kan. 310, 311 P. 2d 342, it was felt that these parties were proper, and quite frankly, plaintiffs were concerned that if the said defendants had not been made parties a contention might have been made that they were indispensable. . .”
In the Sinclair Pipe Line Co. case cited in the quotation above we did, more or less by way of analogy, state:
“It is interesting to note that, contrary to contentions advanced by appellants, some of the foregoing decisions, likewise provisions of the involved statute (79-2005), recognize that the State Commission of Revenue and Taxation, as well as the taxing units to be affected by its determination, are proper parties to an action instituted, under the terms of such statute, to recover taxes paid under protest. . . .” (p. 313.)
Although townships, school districts and hospital districts are subdivisions of the state government with power to make levies for their operation and as such are properly referred to as taxing units or taxing districts, they have no voice or authority whatsoever in determining values for assessment purposes. They may be proper parties, if they desire to participate, as they are interested in the assessed value to which their levies will be applied, but as they have nothing to do with the determining of the assessed value and have nothing to do with any refund that may be directed they are not necessary or indispensable parties in an action to recover taxes paid under protest because of an alleged improper assessment. The presence of such numerous parties would only tend to clutter the proceedings.
The plaintiffs next contend that the trial court erred in suppressing the depositions of Sam Brookover and Harold Grauerholz, mem bers of the State Board of Equalization, and in suppressing the answering of interrogatories by Alvin E. Jones, Director of Property Valuation for the state of Kansas.
The record does not disclose what plaintiffs sought to elicit by the depositions, but it would appear from the interrogatories addressed to the Director of Property Valuation that plaintiffs were attempting to obtain from the state officials just what considerations constrained them to their conclusions or decisions. Each of the interrogatories commenced with the phrase “State the precise factual basis upon which it was determined. . . .” or "State the precise factual details upon which it was concluded. . . .”
The integrity of the administrative process requires that an officer be protected from examination or interrogatories, when attempted by a party seeking relief from an administrative order, regarding the process by which the officer reached his conclusions.
We approve the rule stated in Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 27 S. Ct. 326, 51 L. Ed. 636, which reads:
“When we turn to the evidence there is equal ground for criticism. The members of the board were called, including the governor of the state, and submitted to an elaborate cross-examination with regard to the operation of their minds in valuing and taxing the roads. This was wholly improper. In this respect the case does not differ from that of a jury or an umpire, if we assume that the members of the board were not entitled to the possibly higher immunities of a judge. . . .” (p.593.)
Plaintiffs call our attention to K. S. A. 60-407 which provides that “every person is qualified to be a witness.” We suggest that the statute does not provide for the admissibility of the testimony of every qualified witness. An administrative officer under some circumstances might be a qualified witness but he can not be questioned as to the precise factual basis of his findings or conclusions or the precise factual details which influenced his findings or conclusions.
We now reach the merits of the case and present plaintiffs’ contentions which are stated as follows:
“The plaintiffs made two principal contentions on merits before the trial court. First, plaintiffs claimed that the 100% justifiable value upon which the assessments were based were determined in an arbitrary, capricious and constructively fraudulent manner and resulted in causing plaintiffs to pay more than their proportionate share of the tax burden in Kingman County. Second, and apart from the foregoing, whatever the correct 100% justifiable value may have been, the plaintiffs were discriminated against by the deliberate fixing of their assessed valuations at 30% of justifiable value whereas the bulk of other property in Kingman County [real estate] was assessed at 20% of justifiable value. . . .”
The same contentions were made under similar facts, with the same petroleum engineers testifying for the respective parties, and the same 1965 Oil and Gas Assessment Schedule was challenged in the recent case of Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791. In that case we concluded that the evidence failed to establish conduct by the defendants so arbitrary, oppressive and grossly discriminatory as to constitute constructive fraud and the plaintiff was not entitled to relief.
It would tend to confuse rather than enlighten were we to attempt to reiterate the principles of law laid down in the Cities Service Oil Co. case in the language of a different writer. We, therefore, adopt and incorporate herein by reference what was said in that case as the opinion of the court in this case on the issues quoted above, and having done so it necessarily results that the relief prayed for by plaintiffs must be denied.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal involves the validity of an order entered by the district court of Geary county pursuant to K. S. A. 1965 [now 1967] Supp. 38-808 (b), finding that Brian Templeton was not a fit and proper subject to be dealt with under the Kansas juvenile code, and directing the county attorney to prosecute him as an adult under applicable criminal statutes.
The county attorney initiated these proceedings by a petition filed in the juvenile court of Geaiy county, alleging that on or about March 17, 1967, Templeton, being over the age of sixteen but under the age of eighteen years, committed two separate felonious assaults contrary to K. S. A. 21-431, and requested that he be prosecuted as an adult. A hearing on the petition was held in juvenile court, at which Templeton and his court-appointed guardian ad litem, William F. Stahl, a practicing attorney in Junction City, were present. We are told no transcript of tire juvenile court hearing was made, and the only record of what transpired is reflected in the journal entry, which recites that evidence was presented by the state from which the court made findings substantially in the words of the statute (38-808 [b]) and directed that further proceedings be had against Templeton as an adult in the criminal case then pending in county court. Templeton’s present attorney, Richard F. Waters, was appointed to represent him in the county court proceedings. Mr. Waters then perfected an appeal to the district court from the waiver order entered by the juvenile court.
The appeal was heard de novo by the district court on May 16, 1967. The parties stipulated that Templeton was over sixteen years of age at the time of the alleged offenses. The court, at the state’s request, took judicial notice of the court files in three prior juvenile court cases, all dealing with Templeton. The file in the first case disclosed Templeton was found to be a miscreant child (K. S. A. 1965 [now 1967] Supp. 38-802 [c]), and the court ordered him placed in the care, custody and control of his father until further order of the court. In the second case Templeton was again found to be a miscreant child, and the court ordered him placed in the temporary custody of the sheriff until further order of the court. Presumably, the boy was eventually returned to his home. In the third case Templeton was found to be a delinquent child (K. S. A. 1965 [now 1967] Supp. 38-802 [b]) and ordered committed to the Boys’ Industrial School at Topeka. In the latter case a letter from the Director of Institutions of the State Department of Social Welfare appeared in the court file, stating that Templeton would not be accepted at the industrial school because, “In view of this boy’s age and his past behavior pattern and the overcrowded condition in the Boys’ Industrial School, this boy would not benefit from placement in the Industrial School.” Apparently, Templeton was permitted to return to his home. No further evidence was introduced at the hearing before this district court. The transcript discloses the following statement by the district judge at the conclusion of the hearing:
“. . . This court finds specifically that three alternatives were used by the Juvenile Court as to control of this juvenile’s activities; that by virtue of all three and by virtue of the non-acceptance, specifically, of the juvenile by the Boys’ Industrial School, the Juvenile Court has exercised its discretions as provided for under the Juvenile Code, and that said minor or juvenile is not amenable to the Juvenile Code and its correctional possibilities. . . .”
The court affirmed the judgment of the juvenile court and ordered that further proceedings be had under the criminal statutes. The above findings substantially incorporating Templeton’s prior juvenile court record and the other findings required by K. S. A. 1965 Supp. 38-808 (b) were set forth in a formal journal entry of judgment from which Templeton now appeals.
Preliminarily, we note that appellant in his brief complains of alleged constitutional deficiencies in the proceedings both in juvenile court and in district court. Counsel, however, conceded on oral argument, and rightly so, that appellant’s complaints are really confined to the district court proceedings.
The provisions of K. S. A. 38-834 (b) permit a child to appeal from any final order made by the juvenile court. Such appeal may be demanded on the part of the child by his parent, guardian, guardian ad litem or custodian, or by any relative of the child within the fourth degree of kinship. An order of the juvenile court relinquishing its exclusive original jurisdiction over a child pursuant to 38-808 (b) terminates further proceedings in that court. We hold that such an order is a final order and, therefore, is appealable to the district court.
Once an appeal has been perfected to the district court, the statute (38-834 [c]) provides that “The case shall be heard and disposed of in accordance with the provisions of this act and in the exercise of all the powers and discretion herein given to the juvenile court.” Substantially the same language is found in the earlier appeal statute (R. S. 1923, 38-412), and in Hollis v. Brownell, 129 Kan. 818, 284 Pac. 388, it was held that the district court had no broader jurisdiction than the juvenile court and must try the case de novo, subject to all the limitations as to jurisdiction and issues which apply to the juvenile court. (Also, see, Trent v. Bellamy, 164 Kan. 438, 190 P. 2d 400.) Because of the similarity in statutory language, we are of the opinion the legislature contemplated no change in the manner in which the case should be heard in district court. It follows, then, that upon appeal the district judge, in reality sitting as a juvenile judge, must hear the case de novo, subject to the same limitations as to jurisdiction and issues applicable to the juvenile court.
As part of Chapter 278, Laws of 1965, the legislature enacted what is now 38-808 (b), which authorizes the juvenile court to waive its exclusive original jurisdiction in any hearing upon a petition alleging a child is, by reason of violation of a criminal statute, a delinquent child, as described in K. S. A. 1965 [now 1967] Supp. 38-802 (b) (1), when substantial evidence has been adduced to support findings that (1) the offense alleged is punishable as a felony under the general law; (2) the child was sixteen years of age or older at the time of the alleged commission of the offense; and (3) the child would not be amenable to the care, treatment and training program available through the facilities of the juvenile court. These three findings form the jurisdictional basis for the court’s entering a valid waiver order.
The constitutionality of this statute was upheld in State, ex rel., v. Owens, 197 Kan. 212, 416 P. 2d 259, against the challenge that the statute failed to provide clear standards and guidelines for waiver decisions so as to guarantee against abuses and meet the requirements of due process and equal protection under the federal and state constitutions. Specifically we stated:
“The argument that no standard is provided ignores the fact that the standard is expressly stated to be whether the child is ‘amenable to the care, treatment and training program available through the facilities of the juvenile court.’ To require more precision than this would be impracticable. . . .
“The section of the act in question herein requires that substantial evidence be adduced to support a finding that the offense alleged is a felony; that the child was 16 years of age or older at the time of the alleged commission of the offense, and that the child would not be amenable to the care, treatment and training program available through the facilities of the juvenile court. Considering the nature of the task imposed upon the court, these standards are more than adequate.” (pp. 225-227.)
At pages 227-229 of the opinion the case of Kent v. United States, 383 U. S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, was carefully reviewed. We concluded that the statute was not unconstitutional for any of the reasons asserted, and the statutory standards to be applied in adjudicating waiver proceedings were adequate when applied in accordance with the requirements of Kent.
In Kent the United States Supreme Court was confronted with the waiver provision of the District of Columbia Juvenile Court Act, authorizing the judge to waive juvenile jurisdiction after “full investigation.” The statute stated the circumstances in which jurisdiction could be waived and the child held for trial under adult procedures, but it faded to set forth standards to govern the juvenile court’s decision as to waiver. The conclusion of the Supreme Court was succinctly expressed as follows:
“. . . as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. . . .” (p. 557.)
These requirements were further explained:
“Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.
“Correspondingly, we conclude that an opportunity for a hearing which may be informal, must be given the child prior to entry of a waiver order. Under Black [Black v. United States, 122 U. S. App. D. C. 393, 355 F. 2d 104 (1965)], the child is entitled to counsel in connection with a waiver proceeding, and under Watkins [Watkins v. United States, 119 U. S. App. D. C. 409, 343 F. 2d 278 (1964)], counsel is entitled to see the child’s social records. These rights are meaningless- — an illusion, a mockery — unless counsel is given an opportunity to function.
“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 U. S. App. D. C. 47, 50, 274 F. 2d 556, 559 (1959).” (pp. 561, 562.)
The real thrust of appellant’s challenge to the district court’s order waiving juvenile jurisdiction is that the hearing accorded him in the district court did not measure up to the constitutional standards set forth in Kent. His precise complaint is that the district court did not have before it “substantial evidence” to support its findings that the offenses alleged against him were punishable as felonies and that he would not be amenable to the care, treatment and training program available through the facilities of the juvenile court— the first and third findings required by the statute (38-808 [b]). As previously indicated, the parties stipulated that Templeton was over sixteen years of age at the time the alleged offenses were committed — thus dispensing with further proof as to the second finding.
Under the provisions of the statute, the three findings necessary for the court to make in order to waive its exclusive original jurisdiction must be predicated on “substantial evidence.” The term substantial evidence has come to have a well-defined meaning in our law. It is said to be evidence possessing something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved (e. g., Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108; Curry v. Stewart, 189 Kan. 153, 368 P. 2d 297).
As to the first finding required by the statute, appellant urges that the legislature intended that evidence must be presented to prove that a felony has, in fact, been committed. Such a suggestion, in our opinion, completely disregards the plain and unambiguous language of the statute. The words “offense alleged is punishable as a felony” have reference to the allegations of the petition rather than proof of the actual commission of a felony. If the allegations set forth facts constituting a public offense under the criminal laws of this state, and the offense is punishable as a felony (K. S. A. 62-104), the first finding may be made as a matter of course. In the case at bar the petition alleged two separate felonious assaults contrary to K. S. A. 21-431, and the district court properly determined that the first requirement of the statute was satisfied.
Appellant further asserts that the court records containing the prior juvenile court proceedings involving him were insufficient to constitute “substantial evidence” from which the district court could properly make the third statutory finding, namely, “the child would not be amenable to the care, treatment and training program available through the facilities of the juvenile court.”
Many factors may enter into the judge’s decision in making the third finding. He is called upon to exercise judicial discretion and judgment and determine from the evidence what would be the best interests of the state and of the child. The latitude given him, however, is not complete, for its assumes not only procedural regularity sufficient to satisfy the basic requirements of due process and fairness but also compliance with the statutory mandate of finding from substantial evidence the child’s lack of amenability to the care, treatment and training program available through the facilities of the juvenile court.
In Kent the Supreme Court quoted approvingly from Watkins v. United States, supra, to the effect that social records, staff reports and the like are usually relevant to the issue of waiver, since the court, in making its decision, must be deemed to consider the child’s entire history. Watkins makes it clear that the relevance of particular matters must be “construed generously.” In those cases where the child has a prior juvenile record, the court files in the previous proceedings are extremely relevant to the waiver question. Ordinarily these files contain information indicative of the success or failure of earlier rehabilitative efforts by the juvenile court. In the present case it appears that no social record or staff reports, if in fact there were any, were considered by the district court in rendering its decision. The court had before it and relied only on the court files of the three prior juvenile court cases involving Temple-ton. Those files disclosed that the boy had been permitted to remain in his home environment without success, that he had been placed in the temporary custody of the sheriff on at least one occasion and then permitted to return home — again with no success — and eventually was committed to the Boys’ Industrial School but denied admission because of his “age and his past behavior pattern.” Templeton’s attorney offered nothing to refute what was contained in the court files of the previous juvenile proceedings, nor is complaint made that he was denied any information relied on by the district court in making its decision.
We deem it appropriate to emphasize that notwithstanding the confidentiality the provisions of K. S. A. 38-805 accord the records of the juvenile court and “information obtained and records prepared by any employee” of the court, there is no question, since Kent, but that at the waiver hearing the child’s attorney must be advised and afforded access to any records, reports or other material in the hands of the court or under its control upon which the court relies in order for counsel to assist effectively in the determination of the waiver question. In Kent the point was made that there is no irrebuttable presumption of accuracy attached to reports of the juvenile court staff, and the court stated:
“. . . If a decision on waiver is ‘critically important’ it is equally of ‘critical importance’ that the material submitted to the judge — which is protected by the statute only against ‘indiscriminate’ inspection — be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government.” (p. 563.)
We conclude that the evidence before the district court here was substantial and supported the finding that Templeton was not amenable to further proceedings in the juvenile court.
Although we have said that the provisions of 38-808 (b) set forth clear standards and guidelines to guarantee against abuses and meet the requirements of due process and equal protection, we go further and call attention to the mandate of Kent that the juvenile court must accompany its waiver order with a statement of the reasons or considerations therefor so that there may be a “meaning ful review.” In our opinion a “meaningful review” of the waiver order will be possible if, in addition to a formal journal entry incorporating the three findings required by the statute, the record also contains either a transcript of the hearing disclosing the evidence upon which the court relied in relinquishing its jurisdiction, or, the journal entry itself contains a summary of such evidence. In either instance, the reviewing court is then in a position to determine whether or not there was substantial evidence before the lower court to support its statutory findings.
Under our de novo appeal procedure, this case has come to us for review of the district court’s order, and we therefore have been concerned only with what transpired there. Since, undoubtedly, cases will arise in which the validity of a waiver order entered by the juvenile court will not be challenged until after the juvenile has been successfully prosecuted as an adult, we hasten to add that the views expressed in this opinion should be adhered to by juvenile courts in determining the waiver question in the first instance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by one who claims to be the holder of a check against the payor bank for retaining said check, after receipt, beyond its ‘midnight deadline” before giving notice of dishonor as required by K. S. A. 84-4-301 and 84-4-302 of the Uniform Commercial Code. The trial court sustained the defendant’s motion for summary judgment on the ground the plaintiff was not a proper party to bring the action, and appeal has been duly perfected.
The Electrified Water Company of Shreveport, Louisiana, was owned and operated by Ralph L. Leaderbrand, the brother of the plaintiff herein, Charles L. Leaderbrand (appellant). The plaintiff was a part-time salesman for the Electrified Water Company selling, among other things, White Shield Wonder Cleaner.
Early in March, 1966, the exact date being uncertain, the plaintiff took an order from G. Elliott Lyon to Electrified Water Company for 100 cases of White Shield Wonder Cleaner. At or about the same time Lyon gave to the plaintiff, in payment for the White Shield Wonder Cleaner, his check dated March 5, 1966, drawn on the Central State Bank of Wichita, Kansas, payable to the Electri fied Water Company in the amount of $1,699.50. On or about the 15th day of March, 1966, the plaintiff presented this check in person at the Central State Bank in Wichita, Kansas, to Mr. Burton Black, or another officer of the bank, and was advised orally that the account of G. Elliott Lyon did not contain sufficient funds to honor the check. Approximately one week later the plaintiff returned to the Central State Bank in Wichita and was orally informed a second time that the account of G. Elliott Lyon did not contain sufficient funds to honor the check.
Thereafter, on or about the 21st day of March, 1966, the plaintiff deposited the check in his own account at the First State Bank in Salina, Kansas, and was advised by the Salina bank that he would not be given immediate credit for this check. The First State Bank of Salina did not send the check through regular banking channels for collection, but sent the check directly to the Central State Bank, “mailed for collection,” the check arriving on March 21 or 22, 1966. At no time did the account of G. Elliott Lyon at the Central State Bank in Wichita have sufficient funds with which to pay the check in question, and on April 5, 1966, payment having been stopped by Lyon, the Central State Bank of Wichita returned the check to the First State Bank of Salina unpaid. The White Shield Wonder Cleaner, for which the check to the Electrified Water Company was given in payment, was returned by Lyon to the Electrified Water Company in Shreveport, Louisiana, and accepted by it.
Thereupon this action was brought by the plaintiff against the Central State Bank of Wichita to recover the amount of the check made payable to the Electrified Water Company in reliance upon K. S. A. 84-4-301 and 84-4-302. After discovery proceedings, motions for summary judgment were filed by the respective parties based upon the pleadings, depositions, answers to interrogatories and admissions on file. Appeal has been duly perfected by the plaintiff from the ruling of the trial court sustaining the motion for summary judgment in favor of the defendant.
The appellant states the points in the record on appeal as follows:
“1. The court erroneously ruled as a matter of law on defendant’s Motion for Summary Judgment, that the Plaintiff was not a proper party to bring this action, when plaintiff in his deposition claims to have authority to endorse the check in question both from Electrified Water Company the named payee and G. Elliott Lyons the drawer of the check.
“2. The court erred in failing to rule as a matter of law that the Plaintiff was a proper party to bring the above action, in that the defendant offered no evidence to the contrary, as disclosed by the Record on Appeal.”
The appellant relies upon additional facts which are taken from his deposition. He testified that although the check was made payable to the Electrified Water Company, the check in question was given to him by Mr. Lyon with the understanding that the appellant would be able to cash the check. His deposition testimony further discloses that when the 100 cases of cleaner were shipped to Mr. Lyon, the appellant issued his personal check for $1,500 to the Electrified Water Company of Shreveport, Louisiana, in payment for the 100 cases of White Shield Wonder Cleaner.
The appellant relies upon K. S. A. 84-3-203 for the proposition that when an instrument is made payable to a person under a name other than his own, he may indorse the instrument in that name or his own or both. Upon this premise it is argued the check, made payable to the Electrified Water Company, was given by the maker (G. Elliott Lyon) to the appellant with authority to cash, negotiate and present the check for payment.
The appellant further argues, if the trial court was correct in holding the check was owned by and the property of the appellant’s brother, who owned and operated the Electrified Water Company of Shreveport, Louisiana, the trial court erred in holding as a matter of law that the appellant did not have authority to present the check for payment and the right to bring this action in his own name.
The deposition of the appellant discloses that he had verbal authority from his brother to indorse the check made payable to the Electrified Water Company. (The Uniform Commercial Code permits a signature to be made by an agent [K. S. A. 84-3-403], and the law relative to principal and agent supplements its provisions [K.S. A. 84-1-103].)
The appellant contends the check in question was issued to him and that he had possession of it. (Citing, K. S. A. 84-1-201 [20].) As such the appellant argues he is a holder of the instrument and entitled to the rights of a holder. (K. S. A. 84-3-301.) Whereupon the appellant concludes he has the right to bring this action to enforce payment of the check, whether or not he is the owner of it, in his own name.
The appellee, however, contends our Code of Civil Procedure requires that all actions be brought in the name of the real party in interest, citing K. S. A. 1968 Supp. 60-217 (a), which has been held to effect no change in the former statute, G. S. 1949, 60-401. (Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, 403 P. 2d 185.) The appellee contends the appellant is trying to maintain an action in his own name to collect proceeds which belong to his principal, and that the agent’s right to a commission on the sale is not sufficient to enable him to maintain the action, citing Sievert v. Wood, 133 Kan. 540, 300 Pac. 1090.
It should be noted this is not an action upon a check, but is an action to hold the payor bank accountable for the amount of a check under K. S. A. 84-4-302. The portion of this statute pertinent herein reads:
“In the absence of a valid defense such as breach of a presentment warranty (subsection (1) of section 84-4-207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
“(a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond, midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; . . .” (Emphasis added.)
In view of the posture of this case on appeal we shall assume, without deciding, that the appellant was a proper party to bring this action. There is an obvious reason under the Uniform Commercial Code why the decision of the trial court sustaining the appellee’s motion for summary judgment was correct. If the judgment of the trial court was correct for any reason, it should not be disturbed on appeal. (Henks v. Panning, 175 Kan. 424, 264 P. 2d 483; and George v. Ayesh, 179 Kan. 324, 295 P. 2d 660.)
Under 84-4-302, supra, the payor bank is required to handle a demand item promptly, and upon failure to do so is made accountable for the amount of the item to the person presenting it.
Under the previous section of the Uniform Commercial Code (K. S. A. 84-4-301) a demand item received by the payor bank for credit on its books may be returned or notice of dishonor sent if it acts before its midnight deadline. Subparagraph (3) of this section reads:
“(3) Unless previous notice of dishonor has been sent an item is dishonored at the time when for purposes of dishonor it is returned or notice sent in accordance with this section.” (Emphasis added.)
“Midnight deadline” is defined in K. S. A. 84-4-104 (1) (h) as follows:
“ ‘Midnight deadline’ with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later;”
Under the provisions of K. S. A. 84-3-508 ( 3) notice of dishonor may be given in any reasonable manner. It may be oral or written and in any terms which identify the instrument and state that it has been dishonored.
Under the admitted facts and circumstances of the instant case, the check in question came to the Central State Bank of Wichita, the payor bank, for collection, after having been twice orally dishonored by the payor when the appellant presented the check over the counter at such bank for payment.
K. S. A. 84-3-511 (4) reads:
“Where a draft has been dishonored by nonacceptance a later presentment for payment and any notice of dishonor and protest for nonpayment are excused unless in the meantime the instrument has been accepted.”
A writing which complies with the requirements of K. S. A. 84-3-104 is a “draft” if it is an order, and a “check” if it is a draft drawn on a bank and payable on demand.
It thus appears from the foregoing sections of the Uniform Commercial Code that the failure of the payor bank to give notice of dishonor before its “midnight deadline,” asserted by the appellant to make the payor bank accountable for the amount of the check, was excused.
A careful analysis of these sections of the Uniform Commercial Code will confirm this conclusion.
Section 84-4-302, supra, provides the sanction to make 84-4-301, supra, effective. The improper retention of a demand item other than a documentary draft results in accountability, whether the item was properly payable or not, unless the bank has a valid defense. Relatively speaking, this is a new section in that it was not a part of the Negotiable Instruments Law. Under sections 136 and 137 of the Negotiable Instruments Law the retention of an instrument for more than twenty-four hours by the drawee bank rendered the drawee liable as an acceptor. (Mendell v. Union State Bank, 142 Kan. 84, 45 P. 2d 869 [1935].) In 1949 the Kansas legislature reversed the rule, making the appropriate sections of the Kansas enactment, K. S. A. 52-1105 and 52-1106, inapplicable to checks. A check, being a demand item, is covered by 84-4-302, supra, which renews the possibility of attaching liability to a drawee bank that does not pay or dishonor a check before its “midnight deadline.” (See, Kansas Code Comment in 8 Vernon’s Kansas Statutes Annotated, Uniform Commercial Code, § 84-4-302, P- 437.)
Two cases have been called to onr attention under section 4-302 (K. S. A. 84-4-302) of the Uniform Commercial Code: Rock Island Sales v. Empire Packing, 32 Ill. 2d 269, 204 N. E. 2d 721, 18 A. L. R. 3d 1368 (1965); and Farmers Coop. Livestock Mkt. v. Second Nat. Bank, 427 S. W. 2d 247 (Ky. 1968).
In the Rock Island Sales case the plaintiff sold 61 head of cattle to the Empire Packing Company and received therefor Empire’s check in the sum of $14,706.90. The check, made payable to the plaintiff, was deposited in a collecting bank and sent to the defendant payor bank. Because the drawer’s balance was inadequate, the defendant bank held the check five days upon assurance that additional funds would be deposited. Contrary to such assurance the funds were not deposited and the check was returned. The plaintiff, payee of the check, brought suit against the payor bank asserting that as the payor bank it became liable for the amount of the check because it held the check without payment, return or notice of dishonor beyond the time limit fixed in section 4-302 of the Uniform Commercial Code. In a well considered opinion the Illinois Supreme Court held the payor bank accountable for the full amount of the check to the plaintiff under section 4-302 of the Uniform Commercial Code. In the opinion the court said:
“This construction does not create an irrational classification and so cause the statute to violate constitutional limitations. Defendant’s contention to the contrary is based upon the proposition that section 4-302 is invalid because it imposes a liability upon a payor bank for failing to act prior to its midnight deadline that is more severe than the liability which section 4-103 (5) imposes upon a depositary bank or a collecting bank for the same default. Of course there are no such separate institutions as depositary, collecting and payor banks. All banks perform all three functions. The argument thus comes down to the proposition that the failure of a bank to meet its deadline must always carry the same consequence, regardless of the function that it is performing.
“But the legislature may legitimately have concluded that there are differences in function and in circumstance that justify different consequences. Depositary and collecting banks act primarily as conduits. The steps that they take can only indirectly affect the determination of whether or not a check is to be paid, which is the focal point in the collection process. The legislature could have concluded that the failure of such a bank to meet its deadline would most frequently be the result of negligence, and fixed liability accordingly. The role of a payor bank in the collection process, on the other hand, is crucial. It knows whether or not the drawer has funds available to pay the item. The legislature could have considered that the failure of such a bank to meet its deadline is likely to be due to factors other than negligence, and that the relationship between a payor bank and its customer may so influence its conduct as to cause a conscious disregard of its statutory duty. The present case is illustrative. The defendant, in its position as a payor bank, deliberately aligned itself with its customer in order to protect that customer’s credit and consciously disregarded the duty imposed upon it. The statutory scheme emphasizes the importance of speed in the collection process. A legislative sanction designed to prevent conscious disregard of deadlines can not be characterized as arbitary [arbitrary] or unreasonable, nor can it be said to constitute a legislative encroachment on the functions of the judiciary.” (pp. 273, 274.)
The Farmers Coop. case also involved the sale of cattle, and was decided on facts similar to the Rock Island Sales case. Williams, an alleged agent of Martin, purchased cattle from the Farmers Cooperative Livestock Market, Inc., and in payment therefor Williams signed a draft in the amount of $7,687.01 payable to the order of the Farmers Coop. The instrument was drawn on the Second National Rank of London and contained the notation, “‘To (be) Charged to Acct. of Robert Martin’.” (p. 248.) The check was deposited with the collection bank and forwarded to the payor bank with an accompanying letter which, among other things, stated:
“ ‘We enclose for collection * * *
“ ‘Wire non-payment of items $1,000.00 or over.’
“ ‘Please send us your draft.’
“‘Please wire if unpaid upon arrival, but hold for payment with advice to us. * * * ’.” (p. 248.)
Although Martin had ample funds deposited with the payor bank, it had not been authorized by Martin to charge this draft to his account. The payor bank promptly wrote Martin but received no reply. The payor bank failed to wire the collection bank as the latter had requested. Two days after the payor bank received the item the collection bank called and was told that Martin had not come into the bank to authorize payment of the instrument in question. Subsequently, the collection bank was advised by telephone that the instrument was unpaid, and it was thereafter returned with a letter of transmittal noting, “‘Unable to collect’.” (p. 248.) Action was brought to recover from the payor bank under the provisions of section 4-302 of the Uniform Commercial Code. The Kentucky court held the instrument was negotiable and constituted a demand item, and the lower court was directed to enter judgment for the plaintiff for the face amount of the draft, with appropriate interest. In the opinion the court said:
“Appellee contends that it was a collecting bank because the letter of instructions accompanying the draft contained the words, ‘We enclose for collection’, and appellee treated the item as a collection item. The use of the- term ‘collection’ in the letter certainly cannot be said to have destroyed the statutory scheme governing the collection process. The letter also said, ‘Please wire if unpaid upon arrival’. This draft was presented for payment. (Had appellee wired as instructed, it would have discharged its duty as the payor bank and subsequent action taken to settle this account would have been governed by other considerations.) With respect to how appellee treated this item, we can only say that it took the risk of loss by failure to comply with the law. (The accommodation of customers is a meritorius objective, but a payor bank also owes a clear duty of prompt notification to the bank or person presenting the demand item.)
“One final question in the case concerns the meaning of the term ‘accountable’ in KRS 355.4-302. Appellee suggests appellant suffered no loss because of appellee’s delay in dishonoring this draft. A realistic reading of this statute compels the conclusion that failure to meet the midnight deadline authorizes the person presenting the check to assume it has been honored and will be paid. Banking practices require the prompt settlement of such items because of the chain of credit dependent thereon.
“We think the question of accountability was properly decided in Rock Island Auction Sales v. Empire Packing Co., 32 Ill. 2d 269, 204 N. E. 2d 721 (1965). . . .” (pp. 249, 250.)
The foregoing cases indicate the underlying reasons for section 4-302 in the Uniform Commercial Code and afford a basis for further discussion of the facts in the instant case.
It is readily apparent the payor bank in the instant case did not align itself with its customer to protect that customer’s credit and consciously disregard the duty imposed upon it by the statutory scheme. On the contrary, the payor bank twice dishonored the item in question when it was presented for payment. Notice of dishonor was timely imparted to the appellant in each case because he personally presented the check for payment at the payor bank without negotiating it. At no time did the appellant assume the payor bank had honored the check on the third presentment and that it would be paid, because he knew the check had been twice dishonored and was advised by the Salina bank, through whom the check was presented for collection, that he would not be given immediate credit. The admission of this fact by the appellant inferentially discloses the Salina bank had notice of the previous dishonor.
The provisions of 84-3-511 (4), heretofore quoted, are said to retain the rule of sections 116 and 151 (K. S. A. 52-828 and 52-1209) of the Negotiable Instruments Law. (Kansas Code Comment, 8 Vernons Kansas Statutes Annotated, Uniform Commercial Code, §84-3-511, p. 303.)
Section 116 as it previously appeared in the Kansas law (52-828, supra) reads:
“Where due notice of dishonor by nonacceptance has been given, notice of a subsequent dishonor by nonpayment is not necessary, unless in the meantime the instrument has been accepted.”
Technically, a draft is presented for acceptance (See, K. S. A. 84-3-410) whereas a check is presented for payment. Nevertheless, a check is by definition a draft drawn on a bank and payable on demand. (K. S. A. 84-3-104.)
While the language of 84-3-511 (4), supra — “Where a draft has been dishonored by nonacceptance” — does not refer to a dishonor by nonpayment, we think reference to the dishonor of a “draft” “by nonacceptance” would, a fortiori, include the dishonor of a check by nonpayment. Under K. S. A. 84-3-507 (1) (a) an instrument is dishonored when a presentment is duly made and due acceptance or payment is refused or cannot be obtained within the prescribed time or in case of bank collections the instrument is seasonably returned by the midnight deadline.
Section 1-203 of the Uniform Commercial Code (K. S. A. 84-1-203) provides that every contract or duty within the act imposes an obligation of good faith in its performance or enforcement.
A study of the various sections of the Uniform Commercial Code adopted by Kansas as they relate to the facts in this case, and in particular sections 84-4-301 (3), 84-3-511 (4) and 84-1-203, supra, discloses a statutory scheme designed to impose a duty upon the payor bank, where a check is presented for payment and the drawer has insufficient funds on deposit to cover the item, to give timely notice of dishonor to the party presenting the check for payment just once. Such notice of dishonor fixes the time at which the item is dishonored by the payor bank as to the party presenting such item, and subsequent presentment of the item for collection, where the drawer still has insufficient funds on deposit to cover the item, does not require an additional notice of dishonor by the payor bank to such party. Under these circumstances any further notice of dishonor is excused.
The foregoing interpretation of the Uniform Commercial Code is fortified by analogy in section 3-201 (1) of the Uniform Commercial Code (K. S. A. 84-3-201 [1]), which provides:
“Transfer of an instrument vests in the transferee such rights as the transferor has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.”
The appellant herein, once he had timely notice of dishonor upon presentment of the check for payment, was charged with knowledge that the validity of the instrument was impaired. Any rights which the appellant had, after once having been given timely notice of dishonor by the payor bank, are governed by other considerations in the Uniform Commercial Code (See, K. S. A. 84-3-507 [2]; 84-3-413 [2]; 84-3-122 [3], etc.) Under the facts and circumstances here confronting the court, the appellant is estopped to assert the penalty provisions of 84-4-302, supra, against the payor bank.
The sanction imposed by the provisions of section 84-4-302, supra, were designed to compel compliance with the statutory duties imposed upon the payor bank, but once these duties have been discharged by the payor bank the statutory scheme which emphasizes the importance of speed in the collection process, and the prompt settlement of such items because of the chain of credit dependent thereon has been fulfilled, and the reason for the sanction imposed dissipates. It was not the intention of the legislature to arbitrarily impose liability upon the payor bank under the facts and circumstances here confronting the court.
Article 4 of the Uniform Commercial Code governs checks and other negotiable instruments during bank collection and payment. It also governs the relationship between a bank and its checking account depositor. Rut Article 4 does not contain detailed provisions concerning negotiable instruments law, and it depends heavily upon Article 3 to supplement its provisions in this regard. Article 3 governs the rights and duties of the parties to commercial paper. In case of conflict, the rules of Article 4 control those of Article 3. (K. S. A. 84-3-103 [2] and K. S. A. 84-4-102 [1].)
As we construe the provisions of 84-4-302, 84-4-301 and 84-3-511 (4), supra, there is no conflict between the foregoing sections of Article 3 and Article 4 of the Uniform Commercial Code as enacted by the Kansas legislature in 1965.
In conclusion we hold the sanction imposed by the provisions of 84-4-302, supra, does not apply to the appellee in the instant case, and the trial court properly decided the matter by sustaining the appellee’s motion for summary judgment.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
On September 3, 1950, the movant, Charles E. Ray, a soldier stationed at Fort Riley, shot and killed a character by the name of James G. Raftery, in Saline County. A charge of first degree murder was lodged against Mr. Ray, a warrant was issued for his arrest, and Ray was returned to Salina to face the music.
At his appearance before the examining magistrate on October 10, 1950, the movant, who was not then represented by counsel, waived preliminary examination and was bound over to the district court for trial. On the 25th day of October, 1950, the movant appeared in district court and Mr. Ralph Knittle, a Salina attorney, now deceased, was appointed to represent him.
Two days thereafter, on October 27, 1950, the movant, accompanied by his appointed counsel, Mr. Knittle, again appeared in district court, at which time he was arraigned and entered a plea of guilty to murder in the second degree. Imposition of sentence was deferred, and on November 10, 1950, the movant, in the company, once more, of Mr. Knittle, was sentenced to be confined in the Kansas State Penitentiary for life, and there he has languished ever since.
A motion for relief under K. S. A. 60-1507 was filed in the Saline County District Court on January 5, 1966, and the Honorable John I. Young, then judge of the district court, appointed Jack N. Stewart, a member of the Salina bar, to represent the movant. A hearing apparently was had before Judge Young, but neither the date thereof nor the proceedings which took place are shown in the record.
Regrettably, Judge Young died before entering any judgment on the movant’s motion, and on April 26, 1967, a second hearing was had before Judge Young’s successor, the Honorable Morris V. Hoobler, at which hearing the movant was not present, although evidence was introduced on his behalf by his appointed counsel, Mr. Stewart. At the conclusion of the hearing, the court made the following findings of fact and conclusions of law: (1) That there were no issues of fact or law requiring movant’s presence and “his motion to be personally present is denied;” (2) that the sentence against the movant was properly imposed; (3) that all relief prayed for by the movant “should be and is hereby denied.”
The present appeal is from the foregoing judgment. Five points are raised by the movant.
Mr. Ray first complains that he was not provided counsel at his preliminary hearing. This point is without merit. We have often held that a person accused of felony has no constitutional right to be provided counsel at his preliminary hearing, and that the failure to furnish counsel at that time is not error in the absence of a showing of prejudice to his substantial rights. Cooper v. State, 196 Kan. 421, 411 P. 2d 652, is but one of many authorities to such effect.
The movant next contends that he was inadequately represented in the criminal action and was thus denied effective assistance of counsel. In view of our ultimate disposition of this appeal, this point needs no present discussion. The same may be said of movant’s fifth point, i. e., that the court’s findings of fact and conclusions of law are erroneous.
For his third point, movant argues that the sentence imposed against him was unauthorized and erroneous. Two reasons are advanced, the first being that the journal entry recites that sentence was pronounced under General Statutes of Kansas, 1935, Section 21-403. It is true that G. S. 1935, 21-403 was repealed by the 1937 session of the legislature, (Senate Bill No. 146), but the section was amended and re-enacted in the same measure without any change so far as the penalty for second degree murder is concerned. At the time Ray was sentenced, the amended section, providing the same penalty for second degree murder as did its predecessor, appeared as G. S. 1949, 21-403. The movant’s sentence is not void because the journal entry inadvertently refers to G. S. 1935, 21-403, rather than G. S. 1949, 21-403. This is a formal defect at most and is subject to correction by nunc pro tunc proceedings. (Craven v. Hudspeth, 172 Kan. 731, 242 P. 2d 823; Dunn v. Crouse, 192 Kan. 180, 386 P. 2d 228; State v. Igo, 194 Kan. 550, 400 P. 2d 968.)
The second reason given to support movant’s claim that the sentence was unauthorized is simply this: that life imprisonment cannot be adjudged under G. S. 1949, 21-403, for the offense of murder in the second degree. This contention is not good. We have held that G. S. 1949 (now K. S. A.) 21-403 and 21-109 are to be construed together and that where a penalty statute provides only for a minimum term of imprisonment, any sentence may be pronounced thereunder which is not less than the prescribed minimum. Dunn v. Crouse, supra.) See, also, State v. Akins, 194 Kan. 514, 399 P. 2d 848, in which a life sentence imposed against the defendant for second degree murder was specifically upheld.
What gives us most pause in this case is movant’s fourth contention: that the court erred in refusing to grant a plenary hearing at which he, the movant, might be present. One of the grounds set out in movant’s motion for relief under 60-1507 was inadequacy of counsel, and at the hearing before Judge Hoobler, Mr. Stewart asked leave to introduce evidence to show that his client was entitled to a full evidentiary hearing in his presence. Permission being granted, Mr. Stewart then introduced records from the sheriff’s office consisting of a detailed sworn statement taken by officers from Ray’s companion on the night of the homicide, and summaries of interviews with numerous witnesses concerning the conduct and condition of the deceased during the evening hours preceding his demise.
Mr. Stewart also called, as witnesses, Mr. Drew Hartnett and Mr. Raymond E. Haggart who were, respectively, county attorney and assistant county attorney of Saline County in the year 1950, when the homicide occurred and when the movant pleaded guilty and was sentenced. Neither of these gentlemen had any independent recollection of the case or of talking to Knittle about it, or of what transpired in court. However, they were cross-examined by the state concerning Mr. Knittle’s capabilities as a lawyer and the sort of representation he generally afforded his clients.
It is the opinion of a majority of the members of this court that the facts we have related bring this case within the scope of our decision in Brown v. State, 196 Kan. 236, 409 P. 2d 772. In the Brown case, we said:
“Where the sentencing court in the exercise of its power of discretion has determined that it was necessary to have an evidentiary hearing because the petitioner’s claim was substantial, we hold that it was bound to give the petitioner a full evidentiary hearing and require his presence, because it involved a substantial issue of fact as to events in which he participated.” (pp. 240, 241.)
It is quite true that in the Brown case, it was the state which introduced evidence opposing the movant’s request to be present and testify at his 60-1507 hearing, while here it was movant’s counsel who sought leave to and did introduce evidence thought pertinent to movant’s right to be present and to be heard at the hearing. We believe this distinction, however, is more imaginary than real.
The important issue raised in Ray’s motion, indeed the only issue of substance, was the adequacy of his representation, which we pause here to note, must have amounted to more than mere token representation if constitutional standards of fairness were to be met. In United States v. Wight, 176 F. 2d 376, the court stated:
“. . . There can be no quarrel with the proposition that the right to counsel means the right to the conscientious services of competent counsel. (Citing cases.) Mere perfunctory appearance for a defendant is not enough. (Citing cases.)” (p.378.)
A somewhat ampler statement concerning the right of one accused of felony to the effective assistance of legal counsel may be found in Willis v. Hunter, 166 F. 2d 721, where it is said:
“. . . Since the right to counsel is a matter of substance not form, it is the solemn duty of the trial judge to make sure that representation is not an empty gesture, but is the fulfullment [sic] of the spirit and purpose of the constitutional mandate. (Citing cases.)
“We think that the right to the effective assistance of counsel contemplates the guiding hand of an able and responsible lawyer, devoted solely to the interest of his client; who has ample opportunity to acquaint himself with the law and facts of the case, and is afforded an opportunity to present them to a court or jury in their most favorable light. . . .” (pp. 722, 723.)
This court, itself, has long recognized the principles enunciated in the foregoing cases. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Smith v. State, 199 Kan. 293, 429 P. 2d 103.) That they apply equally where the defendant has entered a plea of guilty, as where he has stood trial, is evidenced by the Miller case, where it was said:
“. . . One of the most important reasons for requiring counsel is to protect a defendant from pleading guilty to a charge which the evidence does not establish.” (p. 711.)
What was done by Mr. Knittle in the course of representing the movant was a matter concerning which Mr. Ray would normally have knowledge, the representation comprising, as it must, a series of events in which he had participated as Knittle s client. It seems apparent, as we said was the case in Rrown, that the trial court entertained some question concerning the movant’s representation, inasmuch as he proceeded to hear evidence touching upon the need for holding a plenary hearing in the movant’s presence.
Two of the three witnesses who testified touched on Knittle’s legal qualifications in a laudatory vein, even though they professed no independent recollection of what, if anything, he had done on behalf of his client. The movant, himself, being absent, could not be heard by way of reply; what his testimony might have been is not revealed in the record, although a letter to his counsel, reproduced in his brief, provides some indication.
Under the circumstances which appear in this case, we conclude that a full evidentiary hearing should have been held with the movant present and permitted to testify.
The judgment is reversed and this case is remanded with directions to grant a full evidentiary hearing at which the movant may be present and permitted to participate. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiffs bring this action seeking to enjoin the defendants, the City of Kansas City, Kansas and the Urban Renewal Agency of Kansas City, Kansas from taking their property through the medium of eminent domain proceedings undertaken in connection with the University-Rosedale Urban Renewal Project.
The action was tried to the court, which made findings of fact and conclusions of law, and entered judgment in favor of the defendants. The plaintiffs have appealed from that judgment. We shall refer to the appellants either as plaintiffs or as the Bowers, and to appellees as defendants or as City and Agency, respectively.
The case is here on a stipulated record, in which many of the facts are undisputed. From the record we learn that plaintiffs T. Bryant Johnson and Mary F. Johnson are the owners of a sixty-five foot property fronting on West 39th, approximately one block east of the Kansas University Medical Center, known as 1906, 1908, and 1910 West 39th Avenue. This property is presently being purchased from the Johnsons under contract by plaintiffs Orville James Bowers and Robert George Bowers, who operate thereon a tavern bearing the unique but somehow appropriate appellation of the Seven Sinners Tavern.
Under the urban renewal plan for the University-Rosedale area, which was approved by the City on September 23, 1964, and recorded on January 19, 1965, the Bowers’ property was to be acquired for planning purposes. On both of the above dates, the property was occupied by three separate businesses, 1906 by a print shop, 1908 by a second-hand store, and 1910 by a private club, then being operated by a party by the name of Ervin, who was buying it on contract from Johnson and his wife.' Thereafter, the Bowers acquired an equity in all three locations, buying Ervin’s equity in 1910 in March, 1965, and purchasing 1906 and 1908 on contract from the Johnsons, themselves, in August, 1965.
In the summer of 1966 eminent domain proceedings were commenced to acquire the properties on which the present Seven Sinners sat. The present action to enjoin those proceedings was filed in August, 1966. Additional facts will be developed in the course of our consideration of the points raised on appeal.
The plaintiffs’ initial point relates to the trial court’s denial of their motion for the production of documents, by which means they sought to make the defendants produce, for inspection, all records and reports regarding the properties located at 1900, 1902, 1904, and 1914 West 39th Street, as well as all minutes of the Urban Renewal Agency relating to the Rosedale Urban Renewal Project. In denying this motion, the trial court ruled, in effect, that the motion did not "seek designated documents” (emphasis supplied) within the purview of K. S. A. 60-234.
We deem it unnecessary to decide whether plaintiffs’ designation was sufficiently specific to comply with the provisions of that statute which, in substance, authorizes the court, upon motion, to order a party to produce and to permit inspection of designated documents which are not privileged and which contain evidence relevant to the subject matter of the action. We might say in passing that judicial views vary as to the specificity required, but suggest that the ideal goal would seem to be a description which is sufficient to inform a person of ordinary intelligence what documents are wanted, and to permit the court to ascertain if its order has been obeyed. (2A Barron and Holtzoff, Federal Practice and Procedure, § 799, pp. 451-459.)
Whether or not the court was correct in its ruling on the motion, it is clear to us that no prejudice resulted. The plaintiffs proceeded to subpoena the records, and they were produced at the trial for plaintiffs’ inspection. Although it is argued that had the motion been sustained, the plaintiffs might have secured an expert to go over Exhibit 47 (on which great reliance is placed) and could have deposed the owner of the corner building, further time was not asked to accomplish either purpose, nor did plaintiffs seek a continuance. We are constrained to hold that plaintiffs’ first point lacks merit, particularly since many of the records produced were used as exhibits in the case.
The several points remaining are largely centered upon the plaintiffs’ principal complaint, i. <?., that the defendants, City and Agency alike, have acted fraudulently, capriciously and arbitrarily in selecting the Bowers’ property for acquisition, while at the same time permitting the owners of adjacent properties to attempt rehabilitation of their buildings.
Cases involving interpretation of the Urban Renewal Law (K. S. A. 17-4742, et seq.) have on several occasions appeared before this court. In Urban Renewal Agency v. Decker, 197 Kan. 157, 162, 415 P. 2d 373, we said it was the municipality which in the first instance has the exclusive right “to determine what lots, parcels or tracts of land are to be taken” as part of an urban renewal project, and that its exercise of discretion is not subject to judicial review absent proof of fraud, bad faith or abuse of discretion.
In other cases we have held that action taken by public authorities under the Urban Renewal Law is subject to judicial review when the same is arbitrary, capricious or fraudulent, and that when urban renewal officials act in bad faith or have abused their discretion, an aggrieved party may maintain an action for injunctive relief. (Offen v. City of Topeka, 186 Kan. 389, 350 P. 2d 33; Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964. It is thus to be observed that the same considerations apply to the review of administrative actions taken by urban renewal authorities, as those taken by other public officials, namely, that public officers are presumed to have performed their public functions properly and in good conscience, and that the burden of establishing bad faith, fraud, or arbitrary and capricious conduct on their part lies with the party alleging it. (Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P. 2d 261; Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213; Eastborough Corporation, Inc., v. City of Eastborough, 201 Kan. 491, 441 P. 2d 891; Urban Renewal Agency v. Decker, supra.)
Having rid ourselves of these observations, we turn again to the facts. The Bowers’ property is sandwiched between properties to the right and to the left. On the left, and to the east, is a corner building housing three small businesses, 1900, 1902 and 1904 West 39th Avenue, respectively. The property to the right, or toward the west, has an area exceeding 13,000 square feet; a garage building is located on the east side of the lot, while the western portion of the lot is vacant. This property is referred to as 1912-1914 West 39th Street.
The Urban Renewal Plan (sometimes referred to as the Plan), which was approved and adopted by the City, designates the plaintiffs’ property (1906-1910) for acquisition, the property on the east of plaintiffs (1900-1904) for rehabilitation, and the property to the west (1912-1914) for tentative acquisition only, the latter meaning that should the owner not rehabilitate or redevelop the property, the Agency would be in a position to take it.
Testimony of defense witnesses disclosed that after examination of all three properties by Agency architects and planners, it was concluded that the building at 1900-1904 West 39th was in better physical condition than plaintiffs’ building and had received better maintenance than plaintiffs’ property, and that it could be rehabilitated within Agency standards; that the decision to classify the garage property (1912-1914 West 39th) as possibly restorable was based on the conclusion that its greater area (over 13,000 square feet), would make it more susceptible to development into a viable economic unit than plaintiffs’ property; and that the plaintiffs’ property (1906-1910 West 39th) was to be acquired by the Agency (1) because of its deteriorated condition and (2) for planning purposes, that is, to provide off-street parking, which plaintiffs’ counsel concedes to be a legitimate planning purpose.
The plaintiffs assert that logical deductions drawn from the evidence prove that it would be impractical to utilize their property as a parking area because of its small size. Hence, they maintain, the trial court’s finding that the acquisition of their property is for planning reasons is not supported by the evidence, and should be set aside. We cannot agree.
The foregoing contention is largely based on a sketch, or rough lay-out (Exhibit 47) prepared by the manager of the UniversityRosedale Project at the request of a Mr. McAnany, who owned the corner building. The sketch is said to establish that the area of plaintiffs’ property, after removal of the building, would be insufficient to provide parking spaces for all of McAnany’s tenants, using the formula set out in the Urban Renewal Plan.
We think the question is not, however, whether the parking area to be acquired by taking the Bowers’ property would be sufficient to care for McAnany’s tenants but whether additional parking facilities were needed in the area, and there was testimony to such effect, and whether the plaintiffs’ property was to be acquired to help provide the additional parking facilities which were needed. We might add, parenthetically, that no traffic experts were produced on the subject and that after a rather cursory examination of the sketch, which contains both basement and street level plans, the court is unable to say either that the area would be inadequate to supply the parking needs of those who might occupy McAnany’s building, or that it would be of no value to the Plan as a whole.
It is said bad faith was shown in singling out the middle property for acquisition when the adjacent buildings were in equally bad physical condition. It is true there was conflicting evidence relating to the comparative condition of the three buildings, and the trial court found that structurally all three properties were in about the same condition, despite considerable cogent evidence to the contrary. We deem this finding of the court of no controlling importance. The Urban Renewal Plan called for properties to be acquired when they were not physically or economically susceptible to rehabilitation or where they were needed for planning purposes. The trial court found that plaintiffs’ property was being acquired under the second alternative and this finding is supported by substantial evidence.
The plaintiffs point to Exhibit 47, the sketch to which reference has previously been made, as proof that both Agency and City officials were motivated by bad faith. The sketch was prepared some six months before the Urban Renewal Plan was approved by the City on September 23, 1964, and the plaintiffs maintain it is thus established that their property is being acquired for the benefit of McAnany, who had previously displayed interest in the property. However, the testimony was that the sketch was typical of many drawings which are made during the planning and development stage of a project in order to find out what possibilities exist, and that one drawing had even been prepared for the plaintiffs, relating to renovation possibilities possessed by their property.
Expatiating further on their claim of fraud and bad faith, the plaintiffs point out they were not given a chance to renovate their property, as were their next-door neighbors, although they offered to do so in accordance with Urban Renewal standards, only to find their offer rejected. In this connection they assign as error the court’s refusal to admit a written offer submitted less than a month before the case was tried. Assuming for the purpose of argument, only, that the ruling was erroneous, the error cannot be said to have prejudiced plaintiffs, if for no other reason than that considerable other evidence was introduced showing the Bowers’ offer to rehabilitate.
But there is nothing in the record to show that the Bowers possessed any legal right to rehabilitate their property, even though private renovation and rehabilitation of existing properties is generally a desirable goal. The only provision we find in this record touching upon the subject is found under Project Proposals, where, in § C 1 (c) of the University-Rosedale Urban Renewal Plan, it is stated:
. . Properties identified to be acquired, which are not to be removed for planning reasons, may be exempted from acquisition in the event the owner expresses in writing his intention to rehabilitate the property in conformance with the Standards and Controls for Rehabilitation within two and one-half (2K) years from the date of approval of this Plan.”
This exemption is permissive only. Furthermore, the provision is not applicable to properties acquired for planning reasons. The exemption concerns only such properties as are not to be acquired for planning reasons.
We have heretofore neglected to mention plaintiffs’ motion to set aside finding No. 4, which motion was overruled. In this finding the trial court stated that plaintiffs were charged with constructive notice of the Urban Renewal Plan at the times they purchased then-present properties, the Plan having been recorded on January 19, 1965. The argument is based on this thesis: that the Land Acquisition Map, (Exhibit 36), which was a part of the Plan, and which disclosed the properties to be acquired, recites it was completed 9-23-65 (which was somewhat after the dates on which the Bowers bought the properties). However, the manager of the UniversityRosedale project testified the map was in existence and was a part of the Urban Renewal Plan prior to the time the Plan was locally approved — that approval having been given several months before the Plan was recorded. Moreover, the Bowers were given personal written notice of the Plan on March 11, 1965, before the purchase of 1906 and 1908 in August of that year. We believe the finding was based on sufficient evidence.
Other arguments are presented by plaintiffs relating to present parking practices, etc., but discussion thereof would merely prolong this opinion without adding a jot to the body of the law. This is essentially a fact case. The trial court, as a part of Conclusions of Law, No. 4, stated:
“. . . The decision to put a parking lot where the Bowers Building now is does not constitute fraud, bad faith or abuse of discretion, notwithstanding any of the Findings of Fact.”
Although this statement is expressed as a legal conclusion, we believe it partakes largely of the nature of a finding of ultimate fact, although it must be conceded that it is often difficult to distinguish the two. (53 Am. Jur., Trial, § 1132, p. 787. See, also, McMichael v. Land Co., 104 Kan. 778, 180 Pac. 777.) As a finding of fact, it is a negative finding, which we have said will seldom be set aside. (See Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1, this day decided, and authorities cited therein.)
There appears to be no reason for us to depart in this case from our established rule. Although the trial court entered a number of findings of fact, some at plaintiffs’ request, which to some extent, at least, supported plaintiffs’ contentions, it nonetheless concluded by finding that the decision reached by the public authorities to acquire plaintiffs’ property to be used for parking purposes did not constitute fraud, bad faith or abuse of discretion.
The evidence was in sharp conflict so far as it pertained both to the capabilities possessed by plaintiffs’ property for off-street parking purposes, and to the physical condition of their building as compared to its neighbors. Even though the record discloses evidence which might have sustained a different version, we cannot say that the court’s finding which rejected fraud and arbitrary conduct was unsupported as a matter of law. (Wood v. Board of County Commissioners, 181 Kan. 76, 309 P. 2d 671; M & B Drilling Co. v. Campbell, 197 Kan. 323, 416 P. 2d 777.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fkomme, J.:
This action was instituted by the administrator, Phillip Bowen, to bring assets into the estate of the decedent, Hugh W. Craig. The suit involves the title to 120 acres of Brown county land and to a $2,020.68 account in the Citizens State Bank of Hiawatha, Kansas.
The defendant, Elma I. Hathaway, was adjudged owner of the land. The plaintiff-administrator was adjudged owner of the checking account. The trial court made written findings of fact upon which the judgment was based. The plaintiff has appealed and the defendant has cross-appealed.
We will consider the appeal of the plaintiff-administrator first. In the petition it was alleged the deed from Hugh W. Craig to the defendant was executed without consideration and as a result of undue influence exerted by the defendant upon the decedent.
The trial court after hearing the evidence made the following findings which relate to the deed:
“The Court finds that Hugh W. Craig, a single person, conveyed the real estate in question to the defendant on February 10, 1965, and grantor reserved the use, rents and income together with one half of all oil, gas or other minerals during his life time; That said deed was filed for record in the Office of The Register of Deeds of Brown County, Kansas on February 11, 1965 and recorded in book 257, page 38; That Hugh W. Craig died March 4, 1966, and his estate is now in the process of administration and that Phillip Bowen is the duly acting, qualified administrator of said estate.
“That prior to and at the time this deed was executed, Mr. Craig had independent advice by Robert M. Finley, an attorney of his own choosing; that the defendant did not solicit or induce Mr. Craig to execute this sale; That whatever relationship there was between Mr. Craig and the defendant, there was no fraud involved in tire sale of this real estate, or any undue influence exerted by the defendant on Mr. Craig.
“That Mr. Craig at all times prior to and after this transaction was completed, knew the extent of his property and the natural objects of his bounty.
“That at no time after this deed was executed, did Mr. Craig ever disaffirm this deed, or bring any action to have it set aside, and that the plaintiff has failed to sustain the burden of proof to set aside this deed.”
The points designated as error by the administrator relate generally to sufficiency of the evidence to support the findings and the judgment. The evidence tending to support the findings will be summarized.
Hugh W. Craig was a farmer. He owned and lived on this land for many years. His closest relative was a cousin who lived in Omaha, Nebraska. He was 82 years old when he left the farm and moved to Hiawatha. On moving to town he gave a power of attorney to his friend, Mr. Shannon, to lease, mortgage and sell his land. He also executed a will in which he gave the property to Mr. Shannon on his death.
Mr. Craig owed outstanding debts totalling under $15,000. It became necessary for him to mortgage the land to pay these debts. Through the efforts of three friends, including Mr. Shannon, he obtained a loan of $15,000 from the Citizens State Bank. This loan was secured by a mortgage on the land.
After moving to town Mr. Craig lived for several months in a hotel in Hiawatha. Because of his age and physical health he needed personal attention. The defendant, Elma I. Hathaway, was working in the hotel. She looked after his meals, washed his clothes and took him to the farm and the bank. Later he moved from the hotel to a nursing home and continued to call on the defendant to take him to the farm and the bank.
About six months after the mortgage was executed Mr. Craig became concerned about his financial condition. He was upset and worried about the mortgage. He had lost confidence in Mr. Shannon as his agent. In October 1964 the defendant took Mr. Craig to the office of Robert M. Finley, an attorney. The power of attorney held by Mr. Shannon was revoked. The will making Mr. Shannon residuary legatee and devisee was revoked.
About a week later the defendant again took Mr. Craig to see attorney Finley and a new power of attorney was executed appointing the defendant as his agent. She was granted authority to deposit his money, write checks on the bank account, lease the farm and collect the rents. She was not given authority to mortgage or sell the land.
Shortly thereafter Mr. Craig became concerned about his living expenses and the interest accruing on the mortgage. He called the defendant to the nursing home and suggested that she pay off the mortgage from her own savings account. As an inducement he agreed to deed the land to her. Later the defendant took Mr. Craig to see attorney Finley and the matter was discussed. The mortgage and accumulated interest amounted to $15,703.55. The value of the land was around $40,000. This matter was discussed by the parties in attorney Finley’s office on five separate occasions over a period of two months. It was finally agreed the defendant would furnish the money to pay the mortgage and Mr. Craig would deed the land to defendant and would retain the rents and profits and a half interest in the minerals during his lifetime.
The money was paid, the mortgage was released and the deed was recorded. A year later Mr. Craig died.
In addition to insufficiency of the evidence the administrator specifies error because the trial court refused to make additional findings requested by him.
An appellate court’s function is confined to a determination of whether there is substantial competent evidence to support the trial court’s findings and whether those findings support the judgment rendered. When the findings and the judgment are supported they are binding and conclusive on appeal. (See Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988 and cases cited at page 709 of the opinion.) In such event this court is not concerned with evidence which, if believed, would support additional or contrary findings. (See In re Estate of Pyke, 199 Kan. 1, 427 P. 2d 67 and cases cited at page 7 of the opinion.)
The trial court found the defendant did not solicit or induce Mr. Craig to execute the deed, she did not exert undue influence on him and he had independent advice from an attorney of his own choosing prior to and at the time the deed was signed.
There is substantial competent evidence to support the findings. The findings support the judgment entered. These findings are binding and conclusive on appeal.
The plaintiff-administrator questions the conclusion of the trial court that plaintiff failed to sustain the burden of proof to set the deed aside. If a confidential relationship existed between these parties he contends this cast the burden of proof upon the defendant and the court erroneously placed that burden upon him.
The burden of proving a disputed fact or issue rests upon the party asserting it as a basis of his claim and remains with him throughout the trial. (See Wycoff v. Board of County Commissioners, 191 Kan. 658, 383 P. 2d 520 and cases cited at page 665 of the opinion.) This is true even though it may be incumbent upon the other party to proceed with the introduction of evidence at some stage of the proceedings. The burden of going forward with the evidence does not change the burden of proving a disputed issue. (Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597.)
The invalidity of the deed was alleged by the administrator as a basis of his claim. He had the burden of proving this issue and it remained with him throughout the trial.
Courts view with suspicion deeds given to a party occupying a confidential relationship with the grantor. Such deeds will be rescinded or cancelled unless the grantee shows by convincing evidence there was no undue influence exerted upon the grantor. The grantee must show utmost good faith on his part. The grantee in the present case sustained that burden of going forward with the evidence.
The quality of the independent advice given is questioned by the administrator. Our decisions do not require a showing of independent advice in every case where a confidential relationship existed. The trial court in the present case found the grantor had sufficient independent advice. However, the grantee may sustain his burden of going forward with the evidence by presenting other substantial competent evidence. (See In re Estate of Carlson, 201 Kan. 635, 443 P. 2d 339 and cases cited on page 648 of the opinion.)
All matters relating to good faith, solicitation, competency, independent advice and valuable consideration were carefully considered by the trial court in determining the issue of undue influence.
The plaintiff-administrator contends the consideration paid for the deed was inadequate. Even though the consideration paid by defendant for the remainder interest in the land may not have been equal to the full market value of the land it was an adequate consideration. It was legally sufficient to render the deed operative to pass title to the property. In such case the amount paid bears only upon the question of undue influence. (Hays v. Patterson, 97 Kan. 478, 155 Pac. 932; 23 Am. Jur. 2d, Deeds § 66; 26 C. J. S., Deeds § 20.)
The judgment upholding the validity of the deed was adequately supported by the evidence.
We turn next to the cross-appeal. The trial court determined the money in the bank account was owned by Mr. Craig at the time of his death and passed to the plaintiff-administrator. From this determination the defendant has cross-appealed. In support of this determination the court made these findings:
“That on March 19, 1965, Hugh W. Craig established a joint tenancy bank account with the defendant in the Citizens State Bank in Hiawatha, Kansas. That on July 26, 1965, Hugh W. Craig notified the Citizens State Bank of Hiawatha in writing that the power of attorney that he had given to the defendant was canceled and that he also canceled any authority the defendant had to write checks on the account; and that James W. Patton, an officer of the bank, so notified the personnel of the bank not to honor any checks drawn by the defendant.
“The Court finds that the defendant recognized the cancellation of this authority and did not write any checks on this account after that date; that this was the intention of Hugh W. Craig to change this account from the joint tenancy account with the defendant to a personal account.”
The evidence at the trial established that prior to April 1964 Hugh W. Craig was the owner of money on deposit in a checking account at the Citizens State Bank. When the power of attorney was given to Mr. Shannon the name listed on the banks ledger sheet was changed to read; “Hugh W. Craig, James M. Shannon, Power of Attorney, 510 Oregon, Hiawatha, Kansas.” After the Shannon power of attorney was revoked and the defendant was appointed in his stead the name on the ledger sheet was changed to read “Hugh W. Craig, Elma Hathaway, Power of Attorney, Hiawatha, Kansas.” The Hathaway power of attorney was executed on November 5, 1964.
An officer of the bank testified it was at this time that Mr. Craig called him to the nursing home and requested he bring a signature card. The officer then talked with Mr. Craig about creating a joint account with Elma Hathaway. A signature card was signed and given to the bank’s officer. It was explained to Mr. Craig that both could write checks and if he died first all the money in the account would belong to Elma Hathaway. The bank had previously been furnished a copy of the Hathaway power of attorney. This power of attorney authorized Elma I. Hathaway to deposit money to his bank account, write checks on his bank account, pay any and all bills that he might incur, including taxes and other indebtedness, execute all agreements relative to A. S. C. farm program and to manage and control all real estate that he owned.
A copy of the signature card does not appear in the record on appeal. It is conceded by all parties, however, that the card was introduced in evidence. It is further agreed that by written provisions of the card both parties were authorized to withdraw any funds on deposit and on the death of one the survivor was entitled to the balance in the account. The officer of the bank testified he considered it a “joint tenancy account.” This account contained the only funds Mr. Craig had in the bank.
On July 26, 1965, Mr. Craig signed a written revocation of the Hathaway power of attorney. The revocation read as follows:
“Know All Men by These Presents, that I, the undersigned, do hereby revoke, cancel and hold for naught, the power of attorney I previously gave to Alma Hathaway (sic), dated on or about the 19th day of March, 1965, and specifically cancel any authority of the said Alma Hathaway (sic) to write checks on my account in the Citizens State Bank of Hiawatha, Kansas.”
An officer of the bank testified he talked with Mr. Craig about this revocation and that Mr. Craig said he didn’t want Elma to write any more checks on his account. The officer then asked Mr. Craig if he wanted her name taken off the account so there would be no “joint tenancy.” Mr. Craig replied, “No, I just don’t want her to write any more checks on my account.” The officer further testified he instructed the bookkeepers not to honor any checks that Elma Hathaway wrote on the account and he notified Mrs. Hathaway to this effect.
It is apparent from the record that neither the depositor nor the banker understood the incidents of ownership and legal implications arising from this two party bank account.
The courts of some states determine title and ownership of such funds on the basis of some specific statutory enactment by their legislatures. Our statute relating to two party bank accounts (K. S. A. 9-1205) was designed for the protection of the bank in making payments from such an account. The statute has nothing to do with the ownership of the fund as between the two parties. (Miller v. Higgins, 188 Kan. 736, 739, 366 P. 2d 257.)
In the absence of statutory enactment various legal theories are used by the courts to give effect to the intention of the depositor. Some states base title and ownership on the law of gifts, some on the law of trusts and still others on the law of contracts. (See 26 Chicago L. Rev. 376; 48 A. L. R. 189, anno.; 161 A. L. R. 71, anno.)
This court has chosen the law of contracts to determine ownership of funds placed in a two party bank account.
In the case of In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443, we said:
“Whether or not a joint tenancy bank savings account is created in the name of a depositor and another must be determined on contract principles.” (Syl. 1.)
In Smith it was determined the name or names placed on the bank ledger sheet do not determine the ownership of the funds in the account.
In Simonich, Executrix, v. Wilt, 197 Kan. 417, 417 P. 2d 139, we held when the incidents of the ownership of the funds in a bank account are evidenced by a written agreement in the form of a signature card the written agreement controls. In such a case, under the parol evidence rule, extrinsic parol evidence is inadmissible to vary the unambiguous terms of the written deposit agreement.
The title and interest of the parties to a two party bank account depends upon the realities of ownership of the funds on deposit. The form of the account does not automatically determine the incidents of ownership. When the parties by written contract agree on the title and ownership of the funds in the account the contract controls.
In the present case the agreement as to ownership of the funds is evidenced by two written instruments. The power of attorney and the signature card were executed contemporaneously and both referred directly to the funds in said account.
When two instruments are executed by the same party or parties contemporaneously or in the course of the same transaction and concern the same subject matter they will be read and construed together to determine the respective rights of the parties. This is true even though the two instruments do not in terms refer to each other. (See Shepard, Executrix, v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P. 2d 19, and cases cited at page 134 of the opinion.)
In the present case both instruments referred to the two party bank account. Both instruments limited and defined the rights of the parties in these funds. When these two instruments are construed together it appears that the intention of Mr. Craig was to retain beneficial ownership of the funds in the account during his lifetime. The bank account was to be used by the agent under the terms of the written power of attorney. The interest which Elma Hathaway acquired in these funds was subject to a reserved power of revocation implicit in the power of attorney. When the reserved power of revocation was exercised all present rights of the defendant were terminated. (See 161 A. L. R. 71, anno, and cases collected therein.)
The practical construction placed upon a contract by a party during performance may be of particular importance in its inter pretation. (Lambertz v. Builders, Inc., 183 Kan. 602, 607, 331 P. 2d 559.)
In this case the revocation of the power of attorney was delivered to the bank by the depositor, Mr. Craig. The revocation was acted upon by the bank. The party affected was notified and it is apparent from her testimony that she acceded to the revocation of her interest in the funds. She testified, “We had a very friendly agreement that he (Mr. Craig) would take care of his own business, but I wouldn’t write any checks on the account.”
The desire expressed by Mr. Craig that Elma Hathaway have the funds on his death was not legally sufficient to effect transfer of title at his death. It was not sufficient as a gift (Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878) and it was not sufficient as a testamentary disposition. (K. S. A. 59-606.)
The rights of Elma I. Hathaway in the funds were legally terminated by the depositor prior to his death. On his death title to the account passed to his administrator.
The judgment is affirmed both on the appeal and cross-appeal. | [
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The opinion of the court was delivered by
Schroeder, J.:
This action was filed in the district court of Crawford County as a common law action to recover damages for personal injuries sustained by the plaintiff. The jury awarded damages of $10,000 against the defendants, W. S. Dickey Clay Manufacturing Company, Inc. and William Schartz. Appeal has been duly perfected by the defendants.
The basic question presented is whether the plaintiff was a statutory employee under K. S. A.'44-503 (a) and is thereby precluded from recovering in a common law action against the Dickey Clay Manufacturing Company, Inc. Other questions are presented as to the defendant Schartz.
Clarence Watson (plaintiff-appellee)'is a truck owner and driver who came upon the premises of W. S. Dickey Clay Manufacturing Company, Inc. (defendant-appellant), hereafter referred to as Dickey Clay, for a load of sewer tile. The premises concerned is a manufacturing plant owned and operated by Dickey Clay. William Schartz (defendant-appellant) is an employee of Dickey Clay and was operating the fork lift loader on the 16th day of December, 1963, at the time of Watsons injury. The injury occurred while the truck owned by Watson was being loaded by Schartz with tile manufactured and owned by Dickey Clay. The tile was delivered to a customer of Dickey Clay. Watson was standing on the front rail of the grain box of his truck, holding a large rack in an upright position, when a load of tile bumped the rack and caused Watson to fall to the ground, thereby causing the alleged injuries.
Dickey Clay contends that it is one of the class of employers covered by the workmen’s compensation act, and by reason of purchasing workmen’s compensation insurance, all of its employees are entitled to and do come within the provisions of the act; that at the time and place of the accident Watson was performing work which was an integral part of the business of Dickey Clay, and by reason thereof Watson was an “employee” of Dickey Clay and thus barred from filing the common law action herein. Dickey Clay contends Watson’s sole remedy as to Dickey Clay is under the workmen’s compensation act of Kansas.
In the trial court Dickey Clay filed a motion for summary judgment after issues were joined by the pleadings. Thereafter, on motion the trial court admitted deposition testimony and exhibits in connection therewith.
The record does not establish that the trial court made its pretrial order on the basis of Dickey Clay’s motion for summary judgment. The pretrial order reads in part:
“The above case is before the court for pretrial conference this 19th day of September, 1966, and the following action is taken:
“1. Plaintiff states that his cause of action is based upon negligence of Schartz, an employee of Dickey Company, in the following particulars: In operating a fork lift without keeping a proper lookout; in operating a fork lift at an excessive speed, and in not keeping the same under proper control; in failing to sound any warning to plaintiff. That the negligence of defendants was a proximate cause of his injuries and damages.
“2. Defendants both deny generally plaintiff’s allegations and deny any negligence. Defendants allege that plaintiff, Watson, was an employee of defendant Dickey Company, and that his exclusive remedy is under the Workmen’s Compensation Act of Kansas. Defendants raise the defense of fellow servant and assumption of risk if plaintiff is in the status of an employee of Dickey Company; if not, the defense of contributory negligence is alleged, in that plaintiff placed himself in a position of peril.
“3. There are no amendments to pleadings.
“4. The issue of plaintiff’s status as an employee of Dickey Company under the Workmens Compensation Act, or an independent contractor is to be submitted to the court as a question of lato.
“5. Defendant Dickey Company admits that William Schartz was an employee, acting within the scope of his employment at all times material.
“On the 12th day of October, 1966, the following additional action is taken:
“1. The parties are present by counsel and present evidence consisting of the depositions of William Schartz, Grace Teter, James Kilroy, Clarence Hall-berg, Clarence Watson, John Resnar, Kenneth Akers and attached exhibits, on the question of law of the status of plaintiff as an employee of Dickey Company, or an independent contractor. The court, after considering the evidence and arguments of counsel, rules as follows: The plaintiff, while on defendant Dickey Company premises under the circumstances disclosed by the evidence is an independent contractor, the plaintiff occupying the status of a business visitor.
“2. The issues of fact to be tried are:
1. Were defendants negligent?
2. If so, was the negligence a proximate cause of injury to plaintiff?
3. The amount of any damages sustained by plaintiff.
4. Was plaintiff contributorily negligent?
“The above order shall control unless modified to prevent undue hardship or injustice.” (Emphasis added.)
The evidence submitted at the trial of the action was on the factual issues, and the instructions of the court pertain to the factual issues set out in the pretrial order.
The jury returned a verdict in favor of Watson and against both defendants in the sum of $10,000, from which judgment appeal has been duly perfected.
On the basic issue determined by the trial court in its pretrial order, as to whether Watson was an “employee” of Dickey Clay under the provisions of K. S. A. 44-503 (a) of the workmen’s compensation act, we are confronted with a question as to the manner in which the record is to be reviewed in the appellate court.
The appellee Watson contends Dickey Clay submitted its motion for summary judgment to the court for determination at pretrial, and that the trial court after considering the evidence determined the issue, as appellant Dickey Clay requested, without submitting the issue to the jury.
The rule in regard to motions for summary judgment is stated in Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786, in the following language:
“Motions for summary judgments should not be sustained unless all the facts which are necessary to a complete determination of the issues presented are before the trial court and there is no genuine issue of any material fact. (See Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.)” (p. 162.)
From the record we surmise the trial court overruled Dickey Clay’s motion for summary judgment and then found, on the basis of the depositions and exhibits submitted at the second pretrial conference, that Watson was an independent contractor, pursuant to its pretrial order that such issue be determined by the trial court.
The appellee Watson takes the position in his brief on this point that the question is whether the evidence introduced, when the matter was submitted to the trial court at pretrial, tends to support the ruling of the trial court. He argues the deposition testimony overwhelmingly supports the ruling of the trial court.
On the posture of this case in the appellate court it may be conceded the status of Watson, whether it be that of an independent contractor or a statutory employee under 44-503 (a), supra, is a question to be determined from the facts. Here the controlling facts have not been conceded or admitted by the parties and must be determined from the evidence. (See, Herrera v. Fulton Construction Co., 200 Kan. 468, 436 P. 2d 364; Hanna v. CRA, Inc., supra; and Coleman v. Patti Construction Co., 182 Kan. 53, 318 P. 2d 1028.)
It should be noted, however, the evidence submitted to the trial court at the pretrial conference was all documentary in form. This court has recognized that under certain circumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts, its duty is to decide for itself what the facts establish, substantially as it does in an original case. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; In re Estate of Besse, 163 Kan. 413, 183 P. 2d 414; White v. Turner, 164 Kan. 659, 192 P. 2d 200; and Boese v. Crane, 182 Kan. 777, 324 P. 2d 188.)
The rule has been stated in other language in Koch, Administratrix v. Prudential Ins. Co., 202 Kan. 229, 447 P. 2d 825, as follows:
“We have adhered to the rule that where the controlling evidence on the issue of fact provides the trial court with no peculiar opportunity to evaluate the credibility of witnesses, it is the responsibility of the court of appellate review to decide what the facts admitted in evidence establish. In North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P. 2d 1060, we stated at page 759:
“ ‘. . . In this situation, this court having the same opportunity as the trial court to consider the facts, must in effect treat the appeal as a trial de novo. . . (p. 232.)
We find the evidence which the trial court had before it when it entered its pretrial order establishes the following facts:
Dickey Clay is a Delaware corporation, having a plant in Pitts-burg, Kansas, which manufactures vitrified clay sewer pipe and related items. The plant manufactures the product from mud to the finished product, and the product is then delivered from this plant to the place it is to be installed on the job site, or to a dealer. Dickey Clay is one of the class of employers described in the workmens compensation act, and by reason thereof it has purchased insurance for coverage under the act.
The loading, hauling and delivery of the tile is a part of Dickey Clay’s business. Sales are dependent upon delivery of the merchandise. The company could not retain its competitive position and remain in business if sales did not include delivery.
The Pittsburg plant services Kansas, Nebraska, Western Missouri, the Northern two-thirds of Oklahoma, the Northwest corner of Arkansas and Northern New Mexico. Other plants are located in Birmingham, St. Louis, Lehigh, Iowa, and Meridian, Mississippi.
The gross sales for the company in 1963 were about eighteen million dollars, of which the Pittsburg plant had sales slightly in excess of five million dollars. Only about 2% of the total sales are to customers who come to the plant and pick up the tile.
Therefore, 98% of the sales require delivery to the customer. Approximately 30% of the sales are dealer sales, and approximately 70% are contract sales. Deliveries to the dealers are usually to lumber yards and deliveries to contractors are usually to the job site.
All companies in the industry provide complete delivery as part of the total selling and merchandising of the product. It is absolutely essential to the continuation of Dickey Clay’s business to provide delivery of the product to the job site of the contractor or to the dealer.
Sales prices are based on delivery to the job site. It is the company’s responsibility to see that trucks are available, loaded prop erly, and to see that the proper number of tile is delivered to the job site. Dickey Clay retains ownership of the tile until it is delivered to the job site.
Suitable truck equipment is necessary to haul the clay products. The drivers must have knowledge how to hold damage in transit to a minimum, and the know-how to comply with the consignee’s requirements in making effective delivery. This includes arriving at the destination as nearly as possible to the stipulated time, and to place the merchandise as close to the requirements of the consignee as is reasonably possible. The drivers are obligated to assist in unloading the product when they reach the destination.
In December, 1963, the tile was delivered from the Pittsburg plant by Dickey Clay’s own trucks and some trucks leased by Dickey Clay, and by Teter Trucking Company, Inc., Van Tassel Truck Line and Hofer Truck Line mainly.
The evidence discloses that in the month of December, 1963, 99.6% of the product sold was delivered by trucks. Only 24 loads were picked up by a customer at the plant. Truckloads totaling 347 were delivered as follows: 60 by company owned trucks; 115 by company leased trucks; 24 by customers who came to the plant; 87 by Van Tassel; 5 by Hofer and 56 by Teter. The load concerned in this accident was included in the 56 loads hauled by Teter.
Loads are normally assigned first to company owned or leased trucks, and then to truckers such as Teter. All of the trucks can haul the various types of tile. There is nothing to prevent a company truck and a Teter truck from hauling tile to the same job, and they do occasionally. Normally a driver, such as Watson, reports to the office at 7:00 a. m. to see if loads are available, and if not he waits his turn to be loaded. The driver parks the truck in the yard and then drives it to the loading dock to be loaded. The driver parks the truck at the dock and pulls it away after it is loaded. The driver must place a rack in the rear of the truck and boom the load after the truck is loaded. It is impossible for a trucker to get a load of tile by simply parking his truck at the plant. Drivers have the right to refuse to take a particular load, but they are dropped to the bottom of the load lists in such event. When this occurs the driver does not get a load on that particular day.
The truckers are not required to participate in the actual loading of the trucks. This is true not only of Dickey Clay’s own drivers but the drivers of other trucks.
Truckers determine how the trucks will be loaded in order to prevent a traffic fine for being overloaded.
The Teter Trucking Company, Inc. is a trucking company which operates trucks that are leased to Teter. The lease agreement between the appellee, Clarence Watson, and the Teter Trucking Company, Inc. is reproduced in the record in full. It provides in part:
“4. It is understood that the leased equipment under this agreement is in exclusive possession, control, and use of the authorized carrier lessee and that the lessee assumes full responsibility in respect to the equipment it is operating.
“9. The lessor [Watson] agrees (a) to deliver to the lessee the herein described equipment in good running order and condition; maintain at his expense the same in good working condition in order to meet the lessee’s requirements on equipment; . . . (d) to drive himself or to furnish at his expense, a competent and qualified employee (subject to lessee’s approval); . . . (h) to receive and put into effect instructions issued by the lessee regarding points of origin and destination, safety measures, routes, rest stops, loading, unloading, cargo protection, and any other specific instructions, regarding operating procedure or methods.”
Teter has KCC authority to handle sewer tile from Pittsburg to all points and places in Kansas.
Teter has a contract with Dickey Clay relating to the hauling of Dickey Clay products. This agreement is reproduced in full in the record.
Teter’s compensation is 15% of the gross receipts of all goods hauled by the trucker under the lease agreement with Teter, and the trucker receives 85% of the gross revenue and pays all trucking expenses specifically enumerated in the lease agreement.
The appellee, Clarence Watson, was one of the truckers involved in the Teter trucking operation.
On the day of the accident Watson arrived on the Dickey Clay premises at about 6:30 a. m. He took two trucks for the purpose of hauling tile. The other rig was operated by Watson’s hired driver. Watson parked the truck in the loading dock. The trailer concerned was a 1960 Dorsey with grain sides which were 42 inches high. The trailer was 35 feet long and 7/1 feet wide. The trailer had a rounding front, and a steel rail about 3 inches wide around the top of the sides of the trailer.
The appellant Schartz was employed by Dickey Clay as a tile loader. The accident occurred while Schartz was operating a fork lift loader and was placing the first package of tile on the front of the truck which was owned and operated by Watson.
A rack made out of 4-inch boards, which is about 7% feet wide and 6 feet tall, is placed in the front of the truck. The purpose of the rack is to prevent the tile from sliding forward in the event of an accident or in sudden braking. The racks are furnished by Dickey Clay and are placed in the front and back of each load..
Ordinarily, a Dickey Clay employee places the rack in front of the truck, but Watson said he had placed the rack in front of his truck several times. On the day of the accident Watson obtained a rack from its location near a building by the loading dock and carried it into his truck.
Watson had placed 2x2 boards on the floor of the truck, and it was ready for loading, it being the responsibility of the trucker to see that the truck is loaded properly. At the time of the accident Watson was holding the rack to designate the place the first package of tile was to be placed. The particular load was not to be a full load, and Watson did not want to overload the front of the truck.
At the time of the accident Watson was holding the rack in an upright position. He was standing with one foot on the edge of the trailer, and one foot on the tarpaulin in the front of the truck. The rack was about 2 feet from the front of the truck bed, and the accident occurred when the first package of tile being hauled into the truck with a fork lift operated by Schartz bumped the rack, causing Watson to fall to the ground.
It is a well settled rule in this state that if a workman can recover workmens compensation under the workmen’s compensation act for an injury, the remedy is exclusive, and he cannot maintain a common law action for damages founded on negligence against a party from whom he could have recovered compensation under the act. (Hanna v. CRA, Inc., supra.)
K. S. A. 44-503 (a) in material part provides:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if the workman had been immediately employed by him; . . .”
Under the foregoing section of the workmen’s compensation act, the question to be determined is whether the work performed by Watson was part of the “trade or business” of Dickey Clay. The work concerned is the loading and hauling of tile produced and sold by Dickey Clay which was being loaded for delivery to a customer of Dickey Clay.
The purpose of the foregoing section of the Kansas workmens compensation act was considered by this court in Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613, where it was stated:
“A prime purpose of section 44-503 of the workmen’s compensation act is to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” (Syl. ¶ 4.)
In Hanna v. CRA, Inc., supra, the court said:
“This court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i. e., (1) is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employees [employee’s] sole remedy against the principal is under the Workmen’s Compensation Act.” (pp. 159, 160.)
The situation in the case at bar is similar to the circumstances presented in Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512. There a feed company, operating under the workmen’s compensation act, as a part of its business sold and delivered feed at a delivered price which it collected from the buyer. It contracted with one who was not operating under the workmen’s compensation act for the delivery of the feed on a per ton basis. An employee of the contractor sustained personal injury compensable under the workmen’s compensation act, and the court held that under G. S. 1935, 44-503 the feed company was liable under the act to the injured employee of the contractor.
Other cases which shed light on the facts presently confronting the court are: Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239; Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701; Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494; Coble v. Williams, 177 Kan. 743, 282 P. 2d 425; and Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872. Some of our more recent cases are: Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P. 2d 558; Herrera v. Fulton Construction Co., supra; and Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P. 2d 146.
The appellee contends Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737, is on all fours with the factual situation in the instant case. We do not agree. The Schafer case and Bendure v. Great Lakes Pipe Line Co., supra, fall in the same category. In each of these cases there was a contract of sale concerning merchandise that was being delivered in a truck driven by an employee of the seller, and the injury occurred on the premises of the purchaser in the course of the unloading process. The question was whether a third party negligence action by the driver, or his next of kin, was barred by 44-503 (a), supra, on the ground that the driver was a “statutory employee” of the purchaser. The opinion in the Bendure case discloses the distinguishing characteristics in such situation.
Throughout his brief the appellee Watson attempts to show that he is an independent contractor, who is not subject to the control of either Teter Trucking Company, Inc. or Dickey Clay. Considerable attention is devoted in the brief to the leasing agreement between Watson and Teeter, and to a determination made by the Internal Revenue Service of the United States Treasury Department that the truckers of Teter under the leasing agreement were independent contractors.
The deposition testimony of Watson relating to his right to take or refuse a load, his right to determine the route to take to the destination, the driving speed, the lack of control over the drivers and the equipment, are all refuted by the specific terms of the leasing agreement which Watson had with Teter, as heretofore quoted.
Whether the relationship of employer-employee existed between Teter and Watson is to be determined in workmens compensation cases by an application of master-servant rules. In Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P. 2d 994, the court said:
“. . . In workmen’s compensation cases this court has applied master-servant rules in determining whether or not an employer-employee relationship existed. The general rule is that a master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Evans v. Board of Education of Hays, 178 Kan. 275, 278, 284 P. 2d 1068.) It is not the exercise of direction, supervision or control over a workman which determines whether he is a servant or an independent contractor, hut the right to exercise such direction, supervision or control. (Bowler v. Elmdale Developing Co., 185 Kan. 785, 787, 347 P. 2d 391; Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186; Davis v. Julian, 152 Kan. 749, 756, 107 P. 2d 745.) The necessity of the control element was also recognized in Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P. 2d 300.” (p. 224.) (Emphasis added.)
It is readily apparent the leasing agreement between Watson and Teter provides for all of the control over Watson and his equipment that Teter desires to exercise.
The fundamental premise upon which liability is predicated in the workmen’s compensation act under 44-503 (a), supra, is the existence of a contract between the principal and the contractor. (Schafer v. Kansas Soya Products Co., supra.)
The deposition testimony of the various witnesses submitted to the trial court confirms that when a trucker under a leasing agreement with Teter appears on the premises of Dickey Clay pursuant to the contract which Teter has with Dickey Clay to deliver its products, the trucker agrees to submit to the controls that are imposed by Dickey Clay; otherwise he hauls none of Dickey Clay’s products. Dickey Clay provides the load, tells the trucker when and where to park his truck to be loaded, requires the truck to be clean and ready for loading, requires the trucker to place the rack in the back of the truck and to boom the load, provides the destination, stipulates the time of arrival at the destination, requires that the load be unloaded by the driver in accordance with the instructions of the buyer of Dickey Clay’s product, and requires the driver to assist in the unloading operations.
On the facts in this case Watson was engaged in performing work which was necessarily inherent in and an integral part of the business of Dickey Clay, and it was the same kind of work which was being performed by employees of Dickey Clay.
Under these facts and circumstances we hold that the appellee Watson was a statutory employee of Dickey Clay under the provisions of K. S. A. 44-503 (a) and entitled to recover workmen’s compensation as a result of injuries sustained while his truck was being loaded at the premises of Dickey Clay on the 16th day of December, 1963. By reason thereof, the appellee’s remedy under the workmen’s compensation act is exclusive and he cannot maintain a common law action for damages founded on negligence against Dickey Clay from whom he could have recovered compensation under the act.
The appellant Schartz contends he should have judgment entered in his favor because (a) Watson was a fellow servant of Schartz and assumed the normal risks and dangers of his employment, including thac of negligence of his fellow servant; and (b) Watson was guilty of contributory negligence as a matter of law.
Where, as here, the status of Watson is held to be that of a statutory employee of Dickey Clay under K. S. A. 44-503 (a) of the workmen’s compensation act, his relationship to Schartz, the negligent employee of Dickey Clay, is that of a fellow employee.
On two previous occasions this court has considered an action by one employee against a fellow employee in a negligence action brought pursuant to K. S. A. 44-504: Roda v. Williams, 195 Kan. 507, 407 P. 2d 471; and Tully v. Estate of Gardner, 196 Kan. 137, 409 P. 2d 782. In each instance the right of the workman to maintain a common law action against a negligent fellow employee was upheld.
In the Roda case it was held:
“At common law, fellow employees mutually owed to each other the duty of exercising ordinary care and each was liable for a failure in that respect which resulted in injury to a fellow employee.
“The history of the Kansas Workmen’s Compensation Act reveals there has never been any complete abrogation of previously existent common law and statutory rights against a negligent third party other than an employer. Rather there has been recognition and preservation of those rights with varying abridgments and adjustments where compensation might also be recovered.
“A co-employee is to be considered as ‘some person other than the employer’ as contemplated in K. S. A. 44-504.” (Syl. ¶¶ 1, 2 and 6.)
In 1967 the Kansas legislature amended K. S. A. 44-504 (L. 1967, ch. 280, § 2) to exclude fellow employees from the operation of its provisions, but this amendment was too late to benefit the appellant Schartz in the instant case.
After a careful review of the evidence presented at the trial of this matter to a jury, we cannot say as a matter of law that Watson assumed the risks of Schartz’s negligent conduct which resulted in his injury and damage, nor can we say as a matter of law that Watson was guilty of contributory negligence.
Accordingly, we hold the judgment of the lower court as to the appellant W. S. Dickey Clay Manufacturing Company, Inc., is reversed, and the judgment of the lower court as to the appellant William Schartz is affirmed. | [
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|
The opinion of the court was delivered by
Kaul, J.:
This is an appeal in a proceeding instituted pursuant to K. S. A. 60-1507, wherein the trial court, after an evidentiary hearing, denied relief on the grounds that, despite an adjudication invalidating the sentence attacked, petitioner would still be confined under another sentence. Issues raised by petitioner in his motion were not determined by the trial court.
At the time of the hearing before the trial court, petitioner was serving a sentence of not less than ten nor more than thirty years imposed by the district court of Labette County. That sentence was attacked by petitioner in Davis v. State, 198 Kan. 271, 424 P. 2d 471. Relief was denied on the same grounds as that relied on by the trial court in the instant case.
The sentence attacked here is for life imprisonment and was imposed by the trial court on November 15, 1952, after defendant entered a plea of guilty to murder in the first degree.
The judgment of the trial court on January 10, 1967, was correct under the mandate of subparagraph (2) of paragraph (c) of our Supreme Court Rule No. 121 (197 Kan. lxxiv, lxxv), in effect on that date. After the date of the trial court’s judgment, this court on June 19, 1968, amended Rule No. 121 by deleting subparagraph (2) of paragraph (c) which read:
“. . . (2) a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence, . . .”
Paragraph (c) as amended now reads:
“(c) When Remedy May Be Invoked. (1) The provisions of section 60-1507 may be invoked only by one in custody claiming the right to be released, (2) a motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected, (3) a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.”
Rule No. 121 was adopted to implement K. S. A. 60-1507 and to establish procedures to be followed in invoking its provisions. The rationale and origin of subparagraph (2) of paragraph (c) was discussed in King v. State, 195 Kan. 736, 408 P. 2d 599, wherein it was noted the rule was firmly rooted in federal procedure ia McNally v. Hill, Warden, 293 U. S. 131, 79 L. Ed. 238, 55 S. Ct. 24 (1934).
The rule established in McNally has been overruled. (See Walker v. Wainwright, 390 U. S. 335, 19 L. Ed. 2d 1215, 88 S. Ct. 962, decided March 11, 1968, and Peyton v. Rowe, 391 U. S. 54, 20 L. Ed. 2d 426, 88 S. Ct. 1549, decided May 20, 1968.) In order to obtain conformance with the holding in the cases cited Rule No. 121 was amended by deleting subparagraph (2) of paragraph (c).
It follows that the judgment of the trial court must be reversed and the case remanded with directions to grant a new hearing and determine issues raised by petitioner.
It is so ordered. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action for injunctive relief and to set aside special lateral sewer assessments levied pursuant to K. S. A. 19-2793' (Laws of 1965, Chapter 170, Section 2) Portions immaterial to this action have since been amended and the statute now appears, as K. S. A. 1968 Supp. 19-2793. For convenience the statute will hereafter be referred to as K. S. A. 19-2793 or 19-2793.
The appellant-defendant Board of County Commissioners of Johnson County, as the Governing Body of defendant Lateral Sewer-District No. T-39 (hereafter referred to as the governing body or defendants), have appealed from an adverse judgment.
The assessments attacked here were spread under the same statute-by the same Lateral Sewer District as in Hessell v. Lateral Sewer District, 202 Kan. 499, 449 P.2d 496, this day decided. Much of what was said and held in the Hessell case is applicable herein and will be pointed out in the course of this opinion.
Plaintiff-appellee is the owner of land described as Lot A and Lot B, Corbin Place Resurvey, a subdivision in the City of Merriam, Johnson County. The special assessment levied by the governing body against Lots A and B were $2,032.74 and $3,710.08, respectively. On October 18, 1966, a public hearing on the apportionment of costs and assessments was held pursuant to K. S. A. 19-27,105. Plaintiff appeared and objected to the assessments against her two lots. The governing body rejected plaintiff’s objections and by resolution confirmed the assessments. Thereafter, plaintiff filed this action in district court.
Plaintiff alleged in her petition that the assessments against her lots were computed on the basis of the total number of square feet, contrary to the provisions of 19-2793, and that such action by the governing body was arbitrary, capricious and without legal authority. She prayed that such assessments be declared null and void; that the defendants be enjoined from spreading the assessments on the tax rolls; and that the court determine what assessments should be levied. In their answer defendants specifically denied that the assessments were levied contrary to 19-2793 or that their action was capricious and without legal authority. They admitted other allegations of plaintiff.
Trial was had to the court and on December 30, 1966, findings of fact and conclusions of law were made and judgment entered declaring the assessments null and void and the action of the governing body unreasonable, arbitrary and contrary to 19-2793. The trial court enjoined defendants from spreading the special assessments on the tax rolls and then determined how the special assessments should be spread against plaintiff’s two lots.
After their motion for a new trial was overruled defendants perfected this appeal. Basically, as in the Hessell case, the controversy involves the construction and application of the provisions of K. S. A. 19-2793. Pertinent provisions of the statute read:
“The cost of any such lateral sewers whenever built, including engineering and legal services, shall be spread equally per square foot over all land to a depth of one hundred -fifty (150) feet measured from the front property line or to the rear property line if less than one hundred fifty (150) feet within such lateral sewer district and all such areas are to be computed on the basis of the net area exclusive of streets or roads, cemeteries or public paries; that for the purpose of this provision the term ‘front property line’ shall be considered to be (a) the front line of the lots established by recorded plats; or (b) in the case of unplatted lands, the front line established by recorded private restrictions; or (c) in case of lands not so platted or restricted, as determined by the governing body . . . Provided, That in the event any land within the lateral sewer district which shall have been exempted from assessment as being in excess of a depth of one hundred fifty (150) feet measured from the front property line, as herein provided, shall thereafter be served by said lateral sewer, said lands shall be subject to assessment and levy the same as are being levied upon all other lands in such lateral district and shall also provide for additional levies upon said land to pay a proportionate share of all amounts previously paid by such district upon any outstanding bonds: . . (Emphasis supplied.)
The portion emphasized provided for a substantially different method of assessment from that of the previous governing statute which provided that the cost of lateral sewers “shall be spread equally per square foot over all land within such lateral sewer district.” (Laws of 1953, Chapter 162, Section 7, G. S. 1953 Supp. 19-2793.)
The practical effect of the 1959 revision was to change the assessment of costs from an unlimited square foot basis to an assessment limited to square feet of land to a depth of 150 feet measured from the “front property line” or if the property in question was less than 150 feet in depth then to the rear property line. There was evidence that the legislative purpose of the 1959 revision was to cure and alleviate the inequities of a total square foot assessment on tracts exceptionally deep or large and in irregular or unusual shapes.
Plaintiff’s lots are contiguous and adjacent to one another. Lot A is a comer or end lot, located to the west of Lot B. Lot A contains 24,943 square feet and Lot B contains 45,525 square feet. The south boundary of Lot B is 140 feet long and abuts Hocker Drive, a public street. The north boundary is 200 feet long and abuts 57th Street. The average depth of Lot B is about 260.5 feet. The east boundary thereof is 261 feet and the west boundary (which is common with the east boundary of Lot A) is 260 feet. Lot A is bounded on the south, west and north by an irregular semicircular boundary which abuts Perry Lane. As noted, the depth (north and south) of Lot A is 260 feet at its east boundary, which is common with the west boundary of Lot B. The south, west and north boundary of Lot A is semi-circular in form and though somewhat irregular it may, for our purposes here, be described as commencing at the southeast comer and extending in the form of a half circle around Lot A, terminating at the northeast comer thereof.
There were no front property lines of either Lots A or B established by recorded plats or private restrictions under provisions (a) and (b) of the statute. Therefore, establishment of front property lines for the two lots was left to the determination of the governing body under provision (c).
The residence of plaintiff and a small guest house were located on Lot B. The residence is approximately in the center of the lot and the guest house is in the northwest portion thereof. There are no improvements on Lot A.
The methods employed in spreading the assessments complained of were described by Myron K. Nelson, chief engineer of defendant sewer district.
Nelson testified as follows:
“A. The determination was made that Lot A was bounded by a sheet, Perry Lane. That Lot B fronted or abutted or was bounded by 57th Street on the North and Hocker Drive on the South and from this basis the 150-foot rule was applied, but since it overlapped, the actual area was used.
“Q. Then is it true to say that it was the determination on this apportionment, then, that this property as far as Lot B is concerned, fronted and abutted two streets?
“A. Yes, sir.
“Q. And therefore a front property line was determined as it related to both of those streets?
“Yes, sir.”
With reference to Lot A he testified:
“Q. In reference to Lot A, what was the determination of the Board of County Commissioners in apportioning the cost of this assessment?
“A. That the Lot A fronted or abutted on Perry Lane and that the depth in an east-west direction did not exceed or did not reach the 150-foot limits, so that the total area was assessable.”
Nelsons testimony indicates that Lot B was determined to have two front property lines, merely because it abutted Hocker Drive on the south and 57th Street on the north. The total area of Lot B was assessed because measurements back 150 feet from each of the two front property lines overlapped.
The total area of Lot A was assessed because the depth measured back from the apex of the half-circle front property line on Perry Lane did not reach 150 feet.
Plaintiffs contends that the two lots, both separately described and listed on the tax rolls, were used as one tract for a homestead and should be considered only as one tract for sewer assessment purposes. And further, since the only improvements on the lots were the home and a small guest house, located on Lot B, both of which face south toward Hocker Drive, the front property line of plaintiff’s property, under the provisions of the statute (19-2793), was the south line of Lot B abutting Hocker Drivé and the south-southwesterly portion of the semi-circular boundary of Lot A abutting Perry Lane. That the assessment against her should be calculated by measuring back 150 feet from the front property line, as described and square feet computed, totaling 24,000 square feet in Lot B and 11,942 square feet in Lot A, as opposed to the total area assessment arrived at by defendants of 45,525 square feet in Lot B and 24,943 square feet as to Lot A.
The trial court reviewed the legislative history of the statute and found that the purpose of the changes made was to cure and alleviate the inequities of a total square foot tax on exceptionally deep or large irregularly shaped tracts. The court then concluded that when the legislature revises an existing law a presumption is raised that a change is intended and should be given effect. The rationale of the trial court in this regard is in line with many decisions of this court. (State, ex rel., v. Richardson, 174 Kan. 382, 256 P. 2d 135, and Curless v. Board of County Commissioners, 197 Kan. 580, 419 P. 2d 876, and cases cited therein.)
With respect to the meaning of the term “front property line,” and the factors to be considered in a determination thereof regarding a tract of land, the trial court ruled:
“No. 10. The word ‘front’ as used in the term ‘front property line’ in K. S. A. 19-2793, means that side of the land toward which a house or building thereon situated faces, generally having a driveway and main entrance to and from the house on such side of the property; it is that portion of the lot which is opposite the rear. (103 P. 2d 1052, 1054; 42 N.E. 323, 326; 140 A. 763)
“No. 11. The word ‘front’ as used in the term ‘front property line’ in K. S. A. 19-2793, as applied to Lot A, being a vacant lot, is that side of the lot towards which, in ordinary circumstances, a house, when and if built, would most likely face considering the general custom of building houses with their main entrance toward the street and further considering the past usage of the lot.
“No. 12. K. S. A. 19-2793 clearly contemplates for a single parcel of land only one ‘front property line’ be determined by the Governing Body and from that front property line the statute determines the depth to be assessed to be one hundred fifty (150) feet unless the ‘rear property line’ is less than one hundred fifty feet. That no land in excess of a depth of 150 feet was to be assessed is clearly evidenced by the proviso provision under the statute as being in excess of a depth of 150 feet measured from the front property line to be thereafter assessed when additional improvements are placed thereon and served by lateral sewers.’ ”
The trial court then proceeded to establish a front property line for each lot as follows:
“No. 16. That a ‘front property line’ for Lot A, Corbin Place Resurvey, should be established by dividing the circumference or perimeter commencing at the Southeasterly corner of said lot, thence Southwesterly to a point one half of the distance of the perimeter.
“No. 17. That Lot A, Corbin Place Resurvey, should be assessed to a depth not to exceed 150 feet as measured at right angles to the ‘front property line’ herein determined.
“No. 18. That the ‘front property line’ for Lot B, Corbin Place Resurvey, should be established along the Southerly boundary of said lot adjacent to Hocker Drive.
“No. 19. That Lot B, Corbin Place Resurvey, should be assessed to a depth 150 feet from the ‘front property line’ as herein determined.”
With respect to its holding as to the front property line for Lot B, the trial court apparently pursued two lines of reasoning. First, that under the facts as established by the evidence, it was unreasonable and arbitrary to determine a front property line on both the south (Hocker Drive) and north (57th Street) boundaries of Lot B and, second, that K. S. A. 19-2793 contemplates only one front property line for a single parcel of land.
We believe the first line of reasoning to be sound.
In the Hessell case we noted various factors and physical characteristics that may influence the determination of the front property line or lines of a particular tract. There it was stated:
“. . . The location, use and frontage of buildings on property are of importance in determining front property lines and the size, shape, location, topography, accessibility and even the view to surrounding property may be significant. (See Bldg. Inspector v. McInerney, 47 Wyo. 258, 34 P. 2d 35; Connecticut Mutual Life Ins. Co. v. Jacobson, 75 Minn. 429, 78 N. W. 10; Staley v. Mears, 13 Ill. App. 2d 451, 142 N. E. 2d 835; Aller v. Berkeley Hall S. Foundation, 40 CA 2d 31, 103 P. 2d 1052.)”
And we held:
“In determining the front property line or lines of a tract of land under K. S.A. 19-2793 (L. 1965, Ch. 170, Sec. 2.) the governing body of a lateral sewer district should consider the size, shape, location and topography of the land; the location, use and frontage of buildings thereon; and the location of public right-of-ways accessible to the property.” (Syl. f 5.)
In the instant case, as in Hessell, the evidence discloses the front property lines were established on two sides of Lot B merely because it abutted on two streets. Other factors relevant to the determination of front property lines were not considered.
This was shown by the testimony of defendants’ chief engineer Nelson, which we have recited.
The testimony of Francis Hughes, another of defendants’ engineers, is narrated as follows:
“. . . that his instructions, where property had a street on one side and a street on the other, was to spread the cost to a depth of One Hundred Fifty feet (150') on both sides, which in this case resulted in the Silks property having a front property line extending clear around on both sides. . .
Robert R. Bayles, a consulting engineer, testified for plaintiff. He gave his opinion that the front property line of Lot B was on the south, as claimed by plaintiff. Bayles testified:
“ . . . I have this opinion by virtue of the direction in which the improvements are faced, the legally assigned postal address, the means of access and egress on the property as indicative of what constitutes a frontage and this is an opinion, but it is also my opinion that the mere term front property bears with it a need to identify a rear property and that this property indeed has both. . . .”
We believe the evidence entirely supports the trial court’s conclusion that a determination of a front property line on two sides of Lot B is unreasonable and arbitrary.
The testimony of their engineers discloses that defendants determined the two front property lines on Lot B merely because it abutted on two streets. On the other hand, plaintiff’s evidence, consisting of her testimony, that of engineer Bayles and various exhibits, reveals relevant physical facts and circumstances which should have been considered but were ignored by defendants.
While what has been said disposes of this appeal as to Lot B, we feel called upon to point out the fallacy of the trial court’s second line of reasoning expressed in conclusion No. 12. The trial court interpreted K. S. A. 19-2793 to the effect that it contemplates only one front property line for a single parcel of land. Proviso (c) of the statute merely directs that a “front property line” shall be determined by the governing body if it was not established by a recorded plat or a recorded private restriction. The determination, like other actions of an administrative body, must be reasonable and not arbitrary or capricious. If a determination is made in a reasonable manner, based upon the relevant physical facts and circum stances, which we have enumerated, there is nothing in the statute which precludes the establishment of more than one front property line for a single tract of land.
Defendants next contend that even though the north 110 feet of Lot B is exempt as being beyond the 150 foot depth, nevertheless it is assessable under the proviso of 19-2793, which authorizes assessment of any land which shall have been exempted as being in excess of a depth of 150 feet measured from the front property line, if such land shall thereafter be served by a lateral sewer. Defendants argue the proviso applies only if previously exempted lands were later to be served by the construction of an additional sewer facility and not if sewer service is available but not used at the time costs were apportioned.
In the instant case a lateral sewer line was constructed on 57th Street on the north boundary of Lot B. The line was tapped which made it available for use by the exempted north portion of Lot B. Even though not used (plaintiff’s improvements use a septic tank system and are not connected with either the 57th Street or Hocker Drive sewer line) defendants contend the 57th Street lateral served the north portion of plaintiff’s Lot B when constructed and, therefore, the exempted land must be initially assessed. Defendants argue that availability, rather than use, controls. In the absence of statutory provision to the contrary defendants’ point is well taken and in line with our decisions.
In discussing the spreading of costs of a lateral sewer under the provisions of G. S. 1945 Supp., 19-2737, as it then existed, this court stated in Johnson County Comm’rs v. Robb, (1946) 161 Kan. 683, 171 P. 2d 784:
“. . . Benefits from installation of a sewer system arise not only from use, but from availability for use. . . .” (p. 694.)
The statement is entirely correct but it was qualified by the court in noting that it was not aware of any statute providing that assessment of costs depends on amount of use or that an assessment is invalid prior to the time the sewer is actually used.
The statute (19-2793) referred to in the Robb case, at the time and now (K. S. A. 1968 Supp. 19-2793), provides that costs be spread equally per square foot over all land in the lateral sewer district.
K. S. A. 19-2793, with which we are dealing, provides an entirely different method of spreading costs from that provided in 19-2737. To apply the availability of use concept urged by defendants, would negate the provisions for exempted areas which result from assessment to a depth of 150 feet from the front property line provided for in 19-2793. This aspect of 19-2793 was construed in the Hessell case to the effect that the term “served” as used in the proviso, with respect to exempted land, connotes service to improvements through a connection with lateral sewers. Our reasons for this construction of the statute are set out in detail in Hessell and need not be repeated.
Under the evidence the establishment of a front property line on the north boundary of Lot B, abutting 57th Street, was unreasonable. Therefore, that portion of Lot B beyond the 150 foot depth, measured from the front property line on Hocker Drive, is exempt under the terms of the statute. Since exempted lands do not become subject to assessment and levy under the proviso, until thereafter served through a sewer connection, the exempted portion of Lot B was not subject to assessment at the time costs were apportioned. It must be kept in mind, however, that the proviso only applies to exempted lands.
With respect to Lot A the testimony of Nelson and Hughes was that it abutted on Perry Lane, which was determined to be the front property line. The depth (east and west) of the lot from the apex of the semi-circle formed by Perry Lane to the east boundary, was less than 150 feet and, therefore, the total area was assessable. As noted, there are no improvements on Lot A, nor was there evidence of the possible future location of improvements that would indicate a frontage other than Perry Lane. There was no other evidence, of physical facts or circumstances, adduced from the exhibits or the testimony that would tend to show the determination of Perry Lane as the front property line of Lot A to be unreasonable, arbitrary or capricious. The burden of proof is upon the plaintiff. Since the evidence falls short of proving the action of the governing body to have been arbitrary, capricious or unreasonable, the assessment of Lot A is not illegal and void on this ground.
In holding the assessment of Lot A to be illegal, the trial court apparently relied principally on evidence that Lot 19, Vernon Place Subdivision, a tract similar in shape had been assessed in a different manner by defendants. From this evidence the trial court concluded plaintiff had been denied equal protection and application of the law. The conclusion would be entirely proper if sup ported by facts. The testimony of chief engineer Nelson and exhibit 7, a plat showing the location and characteristics of Lot 19, reveals that the two lots in question are similar in shape and street frontage. However, the same evidence discloses that the assessment of the two lots was determined by use of the same method. The difference in assessment resulting from the fact that the depth of Lot 19, from the apex of the semi-circular frontage, was more than 150 feet which resulted in the balance being exempted; while the same measurement applied to plaintiff’s Lot A is less than 150 feet resulting in a total square footage assessment under the statute (19-2793). Since the same method was used in assessing the two lots there was no unequal application of the law.
One further point requires our brief attention. Plaintiff argued in her petition and claims in her testimony that Lots A and B should be considered one tract for assessment purposes.
In finding No. 10 the trial court found the two lots have been used as one unit. However, in its conclusions of law the trial court treated the two lots as separate tracts, applied a different rationale, and determined the front property lines of the two lots as separate tracts. There was no cross-appeal and it is doubtful if the question is before us. Be that as it may, here again the burden is on the plaintiff and there is no showing that Lot A is so unsuited for improvements as to support a finding that it was not subject to assessment as a separate tract.
In view of what has been said the judgment is affirmed as to Lot B and reversed as to Lot A.
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The opinion of the court was delivered by
Fromme, J.:
Leo Norcross, claimant, appeals from an award by the district court under the workmen s compensation act. The principal question is whether the district court had the authority to amend a previous judgment and award.
A brief recital of the facts will present the issues. The claimant was injured on November 9, 1963, while employed by Pickrell Drilling Company, respondent, as an oilfield roughneck. The claimant was struck on the forehead while attempting to crank an engine and received a cut which required several stitches to close. He was not hospitalized. The day following the accident he began com plaining of headaches. Other psychopathic symptoms developed. His condition was diagnosed as an anxiety neurosis secondary to the physical injury.
The examiner found claimant suffered a four percent (4%) permanent partial disability to the body as a whole. He determined there were 94 weeks of permanent partial disability due the claimant as of September 13, 1965, and 321 weekly payments remaining to be paid at the rate of $3.13 per week. The disability was found to have commenced at the time of the accident. This award was approved by the director and the claimant appealed to the district court.
The district court heard the appeal and determined claimant was twenty percent (20%) temporarily partially disabled. The court did not specify the date that such disability commenced or the date from which payments should be figured. This first judgment and award was dated February 17, 1967. The award provided for 415 weekly payments.
The respondents previously had filed a motion asking the court to postpone entry of this judgment. The judgment and award was journalized and filed without hearing the respondents’ motion. The journal entry was signed by the judge and by claimant’s attorney. It contained a notation by the attorney for respondents to the effect they were unable to approve the same because the court’s memorandum on which the journal entry was based failed to specify the date the disability commenced.
Before the motion was heard the claimant made demand for compensation under K. S. A. 44-512a and compensation was paid by respondents for the period of November 16, 1963, to August 5, 1967. This payment was made by respondents on August 11, 1967.
The motion was set down for argument and the district court entered a second judgment and award dated September 7, 1967. This judgment will be covered in detail later but its effect was to allow disability commencing September 1, 1965. The date of disability was set by this judgment almost two years after the accident occurred.
The claimant-appellant attacks this later judgment and award. He bases his attack upon the rule that post-trial motions are not authorized in workmen’s compensation proceedings and a trial court cannot amend its judgment and change an award once it is entered.
The respondent-appellees counter by pointing out the trial court has a duty to make the record of a judgment speak the truth and the later judgment was entered nunc pro tunc. The court merely supplied a date overlooked in the first judgment and award.
In Gray v. Hercules Powder Co., 160 Kan. 767, 165 P. 2d 447, this court held:
“The workmen’s compensation act is complete in itself, providing its own procedure, and may not be supplemented by borrowing rules from the code of civil procedure. (Syl. f 1.)
“There is no provision in the workmen’s compensation act for motions for a new trial or for other post-judgment motions. (Syl. f 2.)
“An award which has been formally made and entered by the district-court in a workmen’s compensation case may not thereafter be modified by such court, such judgment being final, subject only to such modification as may be made by the commissioner under section 44-528 or by this court upon appeal under G. S. 1935, 44-556. (Syl. ¶ 3.)”
These principles enunciated in Gmy have been approved and applied in later cases. See Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P. 2d 869.
However, it is true that a judgment as entered is one thing and the judgment as recorded may be quite a different thing, because of error the record of the judgment may not be correct. In such case a trial court not only has the right but the duty to make the record speak the truth. This duty of the court is inherent and does not depend upon rules of procedure or lack of them. See Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356, and cases cited p. 617 of the opinion.
The change in the record to make it speak the truth may be accomplished by an order nunc pro tunc. The function of such an order is to correct the record of a judgment by entering, now for then, an order previously made. It cannot be used to alter a judgment actually rendered. See Hoard v. Shelton, 201 Kan. 145, 439 P. 2d 123, and cases cited at p. 153 of the opinion.
In the present case the trial court filed a written memorandum on which the judgment dated February 17, 1967, was based. The findings which relate to the duration of the disability therein are as follows:
“1. The claimant met with personal injury by accident in Hodgeman County, Kansas, on or about November 9, 1963, which arose out of and in the course of the claimant’s employment by the respondent.
“5. The claimant is presently suffering from an anxiety neurosis. It is probably temporary rather than permanent in nature. By reason of said anxiety neurosis, the claimant suffers some partial functional impairment of the body which in turn is disabling and keeps the claimant from working as well as he was able in the past prior to his accidental injury. There is a causal connection between said accidental injury and the condition of anxiety neurosis he was found to be in at times when Dr. Riordan examined him. . . . (February 25, 1964, and October 11, 1965.)
“6. By the very nature of things, the question of the extent of disability is often times conjectural. Human nature being what it is, and medical science not being perfect, makes any decision by a trial court in matters of this kind, extremely difficult. The dilemma in this kind of case is similar to the dilemma courts have in considering the divergent medical views in heart cases. This Court, as in most cases, is not required to confine its consideration of a workman s injury to the testimony of expert medical witnesses, and it is not essential that the disability or incapacity, or its extent or probable duration, be established by medical testimony. As the examiner pointed out in his award the testimony of the claimant alone was sufficient to support a finding of disability in Oliver v. Christopher, 98 Kan. 660. Likewise the duration of claimant’s disability need not be shown by medical evidence, and the testimony of lay witnesses, indeed, even that of the claimant, is considered of prime importance, as shown by the cases. . . . (citing cases). The testimony of the medical witnesses in this case, which standing alone is inclusive (sic), requires the consideration of other testimony as well. Therefore, this Court considered not only the lay testimony of the claimant in this regard, but also the testimony of Mrs. Wetig, his landlady, who saw and observed him frequently and noted a significant change in his behavior following his November 9, 1968 injury by accident. (Our emphasis.)
“8. This Court concludes that the claimant is temporarily partially disabled to the extent of 20%; that he should be afforded additional medical and psychiatric care and treatment at the expense of the respondent and the insurance carrier.”
The first judgement awarded compensation to claimant for 415 weeks of twenty percent (20%) temporary partial disability at the rate of $15.65 per week, or until further order of the director.
The second judgement and award, dated September 7, 1967, was based upon a second written memorandum by the trial court. It reads as follows:
“This Court upon reviewing the files of the above entitled matter finds it filed a Memorandum with the Clerk of the District Court on June 29, 1967, In this Memorandum it failed to specifically set forth the dates as to when the claimant’s temporary disability started.
“This Court further finds that the Respondent filed a Motion for the postponement of the entry of Judgement in this case until further argument was had. Through the Court’s own oversight and neglect the Journal Entry was signed and filed with the Clerk of the District Court on August 15, 1967, notwithstanding a notation on said Journal Entry that Counsel for the Respondent had a motion pending before the Court.
“On September 7, 1967, Counsel for the Respondent presented its motion and thereafter the Court retrieved the files from Hodgeman County, examined the files, and reviewed the proceedings. After full consideration was given to arguments of Counsel and the facts as disclosed by the files, this Court finds its original Memorandum is in part incorrect and should be corrected to speak the truth; that it has the power to reopen this case because this court did not take into consideration the Motion of the Respondent that was pending before it in this particular matter; that its original order was incomplete, and through its own fault . . . failed to advise Counsel of its finding as to when the temporary partial disability of the claimant started; that the Memorandum should have, and it was intended by the court that it did have, a date when the temporary partial disability of the claimant was to commence.
“A review of the files discloses no evidence when the claimant first asked for treatment but during argument Counsel advised that it took place in May 1966, approximately two and a half years after date of accident (November 9, 1963). Shortly after the claimant was injured he was examined by Dr. Hiebert for possible plastic surgery and this might have been the first indication of the traumatic neurosis which claimant has suffered. Claimant said he started having his headaches around the first of December 1963, and it was then he first went to see his attorneys because he had ‘seen a few of these accidents where the guys wouldn’t do anything, and later ended up crippled the rest of their lives’. The claimant had not seen a doctor for his headaches when he was examined by the Examiner on July 8, 1964. He again testified on May 6, 1966, and stated he was hesitant to testify concerning his employment since his accident because he might lose his job with the company if the insurance company learned for whom he worked. The claimant indicated he had a fear that the insurance company would tell his employer to terminate his employment, and reasoned that his employment had been terminated on occasions for that reason. It matters not whether there was any basis in fact to cause this fear. He testified he lost his job after he testified the first time. The testimony indicates that he did have some fear if he disclosed for whom he worked, and that upon disclosure, his employment would soon be terminated.
“Although he did not work for several months after the accident the evidence indicates he worked rather steadily after the accident. During this period of time he consumed many aspirin to relieve his headaches and pain. The Memorandum this Court filed made a finding that the claimant was suffering from an anxiety neurosis. It is difficult to determine when the anxiety neurosis became so severe as to require medical attention and treatment. The illness obviously was present and existed when he first asked for treatment in May 1966. It is easy to be arbitrary and say the illness existed from the date of the accident or that it started when he first asked treatment but neither is entirely correct. The Court would be more inclined to believe that it started to manifest itself during the year 1965. The Court has attempted to completely reread all of Mr. Norcross’s testimony and it is hard from a time standpoint for it to tie itself to any specific statement he made. He disclosed how he regularly took five or six aspirin at one time; became irritable and would fly off the handle; that he did not like to fish any more or watch television; but he did not really state when this illness started.
“The testimony of Amelia Wetig indicates she knew when he had the accident and that he complained about headaches about twice a week. Mrs. Wetig’s testimony seems to indicate his trouble started after the accident. All this time, however, he apparently worked steadily for several employers and was able to earn an adequate living doing the same kind of work he had previously done and was doing at the time of his accident.
“The accident took place in November 1963.
“He asked for treatment May 1966.
“Sometime during 1965 the illness of the claimant became severe enough to render him temporarily partially disabled. In this Court’s opinion, considering all of the evidence, and nothing specifically, it started to increase in intensity during the summer months of 1965, and became severe enough to render him partially disabled and in need of treatment about the month of September 1965.
“Therefore, this Court amends its original Memorandum to show that the temporary partial disability of the claimant commenced September 1, 1965, and the award made by this Court should be computed from that date.”
The second journal entry is not limited to correcting the record of a judgment previously rendered. The action taken by the court, as outlined in the memorandum, was to review and re-examine the evidence bearing upon the duration of the disability. It is apparent a different conclusion was reached after the later evaluation of the evidence.
For instance, in the first memorandum the court stressed the testimony of the claimant and of Mrs. Wetig, his landlady. The court pointed out that the testimony of claimant alone may be sufficient to support disability and that the duration of disability does not have to be shown by medical evidence. (See finding No. 6.)
The testimony of claimant and his landlady did support the finding the disability commenced immediately after the accident.
In the second memorandum the testimony of claimant and his landlady received passing comment by the court. More weight was given to the dates of treatment and the testimony of medical witnesses. The court referred to its action as amending the previous memorandum and judgment. This re-evaluation of the evidence was not for the purpose of determining the nature of the judgment previously rendered. It was to determine what judgment should have been rendered on February 17,1967.
The respondent-appellees further contend the district court is not limited to entering an order nunc pro tunc. Based upon Fisher v. Rhoades Construction Co., which first appeared in 188 Kan. 792, 365 P. 2d 1101, and later in 190 Kan. 448, 375 P. 2d 771, they say a district court may make its findings more clear and specific and change the amount of the award in workmen’s compensation cases.
Examination of the Fisher cases will indicate they deal with the authority of a district court to reconsider its findings and award after remand. In such case the district court is authorized and limited by the directions given by this court in the opinion and mandate. The Fisher cases do not purport to modify the rules laid down in Gray v. Hercules Powder Co., supra. The Gray case is clearly distinguished in the Fisher cases.
An additional reason appears why we do not consider the second journal entry an order nunc pro tunc. The total amount of the award under the first judgment was reduced in the second journal entry.
The first award provided 415 weeks of compensation. Both parties considered the disability in the first award to have commenced at the time of the physical injury. Payments were made in response to the 512a demand from November 16,1963.
In Magers v. Martin Marietta Corporation, 193 Kan. 137, 392 P. 2d 148, it was held that under the workmen’s compensation act weekly payments for disability cannot extend beyond eight years from the date of the injury. Under the first journal entry 415 weekly payments could have been made if commenced November 16, 1963. (One week after the accident.)
Under the later journal entry payments were to commence September 1, 1965. The number of payments was deleted in this journal entry and the payments were to be made “as provided by law, or until further order of the Director.” It is apparent the effect of the second journal entry was to reduce the number of weekly payments possible under the eight year limitation. Only 327 weekly payments were possible if payments were to commence September 1,1965.
The second journal entry was not an order nunc pro tunc. The award dated February 17, 1967, was formally made and entered. It became final and could not be modified thereafter by the district court.
The judgment is reversed with directions to vacate the order and award dated September 7, 1967, and reinstate the order and award dated February 17,1967, which order and award must be interpreted as having determined the disability commenced on the date of the accident. | [
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|
The opinion of the court was delivered by
Harman, C.:
Plaintiff brought this action for damages against defendant Ruskin Rice for breach of a contract not to compete and against the remaining defendants for inducing and participating in that breach. Upon trial at the close of plaintiffs evidence the trial court directed a verdict in favor of defendants and plaintiff has appealed from that ruling.
The trial court based its ruling upon two grounds: The contract sued upon was invalid and unenforceable, and plaintiff’s evidence failed to establish that defendants had caused plaintiff to sustain any damage.
Plaintiff is a small manufacturer of commercial and military canvas and canvas-type products at Springfield, Ohio. The business was commenced as an individual proprietorship by one Vernon McCoy. As it prospered it became a partnership with McCoy and his wife Marjorie, and then a corporation with the McCoys owning all the stock. In 1952 Vernon died and Marjorie became president of the company.
In 1954 defendant Ruskin Rice entered the employment of plaintiff company and he and Marjorie were married. In 1955 Rice became general manager of plaintiff and was in charge of its production and sales. A part of its business was as a subcontractor supplying specialized military canvas products under rigid specifications to prime contractors holding Department of Defense and Atomic Energy Commission contracts.
Marital trouble eventually developed between the Rices. As a result on September 15, 1962, Rice resigned his employment with plaintiff and he and Marjorie were divorced. As a part of the separation Rice entered into a written contract with plaintiff whereby Rice agreed, in consideration of payment to him of money and property totaling four thousand dollars, he would not compete directly or indirectly with plaintiff in any manner for a period of three years at any place throughout the United States, either as an individual or a member of another organization.
On October 22, 1962, Rice entered the employment of the three remaining defendants, who as partners under the Langdon company name in their plant at Wichita likewise manufacture and sell commercial and military canvas products. Rice remained in Langdon s employ until sometime early in 1964. Prior to and during Rice’s employment by Langdon, Langdon competed in the same field with plaintiff in the manufacture and supply of military canvas products, and both companies were seeking to expand their operations.
As indicated, a crucial issue in the case was whether plaintiff’s evidence showed causation by defendants of damage to plaintiff by way of loss of profits and diminished value of plaintiff’s business. At this point it should be noted that, because of the following, trade secrets are not involved in this litigation. In March, 1963, soon after plaintiff learned of Rice’s employment with Langdon it sought in federal district court at Wichita to enjoin that employment. Injunctive relief was denied April 5, 1963. In the instant action the trial court held a pretrial conference as a result of which it entered an order providing in part:
“6. Some of the issues of fact decided by Judge Brown, in the case of Springfield Tent & Awning Company v. Ruskin Rice, et al, Civil Action No. W-2813, decided in the United States District Court for the District of Kansas are res judicata and cannot be relitigated in this action again. These issues of fact are as follows:
“(a) The suppliers of products for canvas fabricators are well known throughout the industry and there are no secret sources of materials or price advantage of one purchaser over another. The canvas fabricating business is highly competitive because of common sources of suppliers; similarity of methods in both production and sales and the elements of transportation costs. (Judge Brown’s Finding of Fact No. 14.)
“(h) Rice does not possess any trade secrets whereby Springfield was , enabled to maintain any advantage over its other competitors. (Judge Brown’s Finding of Fact No. 15.)
“(c) Springfield has no trade secrets although there may have been a manner of doing business which might have been different from any of those of other canvas fabricators. Springfield did not show that its business was operated in a manner to keep out any persons wishing to visit their plant. (Judge Brown’s finding of Fact No. 16.)
“(d) Springfield did prove that it made money in only two of the eight years Rice was connected with it and that its net worth was reduced from the time of his employment from $339,000 to $205,000 when he was terminated. (Judge Brown’s Finding of Fact No. 17.)”
No appeal upon this point has been taken and plaintiff concedes trade secrets are not here involved.
Plaintiff offered the testimony of nine witnesses, including that of Marjorie and of a long-time employee of plaintiff. Its other witnesses included defendant Rice and employees of other companies engaged in the contracting of military canvas products. Plaintiff also offered much documentary evidence consisting of its own records and of correspondence and intra and inter-company records of Langdon dealing with its production and sales of military canvas products.
This evidence is lengthy and detailed and no attempt will be made to narrate it. It described the general method of operation usually carried on between prime contractors and subcontractors in the field of military procurement of canvas products, and particularly that carried on by plaintiff over a period of time with certain prime contractors. Much of the documentary evidence dealt with Langdon’s sales in the same area. Plaintiff sought to show that due to Rice’s employment with Langdon plaintiff lost business with two prime contractors it would otherwise have had. The prime contractors are private corporations for profit and their subcontracts become highly competitive in their effort to get the best qualified bid at the lowest price.
Plaintiff being forced to go in part into an unfriendly camp in an effort to establish its contention, some of its evidence is contradictory, and the parties place widely varying interpretations on much that is undisputed. However, the rule is that on a motion for directed verdict the trial court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury (Bingham, v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591).
After reviewing the evidence in the light of the foregoing, we cannot say the trial court erred in its ruling. Such contradictions and inconsistencies as there were in the evidence were not on issuable or material facts. Giving plaintiff the benefit of all such, and all circumstances and the favorable inferences to be drawn therefrom, we think plaintiff’s evidence raised no more than mere conjecture or speculation that defendants’ actions damaged plaintiff during the period of Langdon’s employment of Rice. To illustrate, in some instances Langdon later received from a prime contractor certain contracts upon which plaintiff had declined to bid at a time while Rice was still plaintiff’s general manager, and in other instances in which the prime contractor never invited plaintiff to bid. Plaintiff would presume this loss of business in both instances to be the result of Rice’s association with Langdon but we must regard the evidence urged in support of this proposition as purely surmise. Other similar examples could be recited. Plaintiff never made a competitive bid on any particular contract awarded to Langdon during the period in question; plaintiff would explain this by the occurrence of that which it labels a series of abnormalities and irregularities, ascribable to Langdon’s use of Rice, but we think the explanation lies wholly within the realm of speculation. A key em ployee of plaintiff, who had intimate knowledge of its business affairs during the period in question, was unable to testify as to any loss of business by plaintiff to Langdon during the crucial time. Such lack of testimony would not, of course, be conclusive upon plaintiff upon motion for directed verdict but it illustrates the extremely tenuous nature of plaintiff's theory. Plaintiff contends the whole picture presents a situation wherein Langdon’s cunning and surreptitious use of Rice and manipulation of others not connected with either company enabled Langdon to obtain a competitive edge once held by plaintiff to plaintiff's detriment. In our opinion this theory lacks tangible support in the evidence and is completely conjectural and speculative. Mere surmise or conjecture is insufficient to establish a cause of action. Nor may an inference be drawn upon an inference to establish liability (2 Hatcher's Kansas Digest, rev. ed., Evidence, § 346). This latter rule was interpreted in Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P. 2d 772, as follows:
“What is meant by the rale forbidding the basing of one inference upon another is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Syl. ¶1.)
Plaintiff's evidence simply would not have supported a judgment in its favor. The trial court correctly ruled plaintiff’s evidence failed to establish that defendants had caused damage to plaintiff. This issue is determinative and the judgment appealed from is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
The appellant, Charles Lindberg Pierson, was convicted by a jury of the crime of robbery in the first degree (K. S. A. 21-527), and he was sentenced to confinement and hard labor in the Kansas State Penitentiary for a term of not less than 40 years nor more than 60 years pursuant to K. S. A. 21-530 and 21-107a.
The armed robbery took place on the evening of August 9, 1964, in the home of Ralph Pellow, Overland Park, Kansas. Pellow had guests in his home and had gone out to get some pizza for dinner. When he returned, the appellant was in the home holding a handkerchief over the lower part of his face and a pistol in his hand. Pellow was forced to join his friends on the living room floor where the appellant put his pistol in Pellow’s ear and around his nose and threatened to kill him unless he gave the appellant money. As a result of the threats, Pellow told the appellant of a valuable coin collection he had in his safe. Pellow was forced to open the safe and the appellant took the coin collection, placing it in a pillowcase. The appellant also took a mink stole, a fur coat, two cashmere coats, jewelry boxes containing Mrs. Pellow’s jewelry, a 4% carat diamond ring, a gold watch with a diamond face and gold band, and Pellow’s identification holder which contained various credit cards and the titles to two automobiles he owned. The credit cards were issued by major oil companies; there were two or three restaurant credit cards, Pellow’s social security card and a hotel identification card, all issued in Pellow’s name. The evidence showed the property taken by the appellant was reasonably worth $6,000.
On September 18, 1964, a man who identified himself as Ralph Pellow was arrested in Manhattan Beach, California. He later identified himself to members of the Manhattan Beach police department as the appellant, Charles Lindberg Pierson. The officers asked Pierson for his consent to search an apartment he was renting in Manhattan Beach. Pierson gave his consent to the search and the officers took him to the apartment and searched it. Certain items stolen from Ralph Pellow in Overland Park on the evening of August 9,1964, were recovered.
Upon receiving this information, the county attorney filed a complaint in the Johnson County Magistrate Court on October 7, 1964, charging the appellant with the armed robbery of Ralph Pellow on August 9. A warrant was duly issued and the appellant was arrested in Kansas State Penitentiary at Lansing, on June 2, 1967.
On June 19, 1967, after an agreed continuance, the appellant was given a preliminary examination in the Magistrate Court and he was bound over to the district court to stand trial. He was represented by retained counsel.
On June 20, 1967, an information was filed in the district court charging the appellant with the armed robbery of Pellow on August 9, 1964. Upon arraignment on September 7, 1967, the appellant stood mute to the charge in the information and the district court entered a plea of not guilty on his behalf.
On September 11, 1967, the appellant appeared in court with retained counsel. Prior to the commencement of the trial, counsel orally moved for a continuance, stating at length his grounds therefor, stressing his main point that he was retained on August 8, 1967, and had spent considerable time on habeas corpus on behalf of the appellant in the same court, and that he needed more time to prepare for trial. The court overruled the motion for continuance and upon the selection of twelve jurors the trial commenced.
The state’s evidence consisted of the testimony of Ralph Pellow and Detective Ray Bennett of the Manhattan Beach police department. Pellow testified as to the items of property taken and of their value, and that he identified the appellant from pictures shown him in 1964 by members of the Overland Park Police Department, and, since the appellant was holding a handkerchief over the lower part of his face and was wearing a hat, by his “very piercing dark brown eyes.” Detective Bennett testified that the appellant first identified himself as Ralph Pellow and later told the Manhattan Beach police officers he was Charles Lindberg Pierson; that he gave his consent to the officers to search his apartment; that they took him to the apartment and searched it, and found an identification holder in a dresser drawer containing a social security card and various credit cards issued in the name of Ralph Pellow. Bennett further testified the appellant gave him written consent to search the apartment but that he (Bennett) did not bring the consent with him when he came to Johnson County to testify. The credit cards and Pellow’s social security card were state’s Exhibit No. 1 and were admitted in evidence over the appellant’s objection.
At the conclusion of the state’s case, the appellant requested a continuance until the following day, September 12, to produce his only witness, his wife, Jean Pierson. The motion was granted and the trial continued. When the trial resumed the following morning, the appellant produced no witness, nor did he offer evidence on his behalf. Upon counsel’s announcement the appellant rested, the case was submitted to the jury which returned its verdict finding the appellant guilty as charged in the information.
The appellant first contends the district court erred in admitting state’s Exhibit No. 1 over his objection. As indicated, the exhibit consisted of Pellow’s social security card and three credit cards issued in his name. The appellant concedes that voluntary consent to search a premise may be given orally, but argues the burden was upon the state to show the search and seizure were lawful, and contends the evidence of consent was insufficient to admit the exhibit. Pellow testified the items in the exhibit were among the items taken from him the night of the robbery. Detective Bennett testified he recovered the items from the appellant’s apartment in Manhattan Beach which was searched with the appellant’s consent and in his presence.
The constitutional immunity from unreasonable search and seizures proscribed by Section 15 of the Kansas Bill of Rights and by the Fourth Amendment as made applicable to the states through the due process clause of the Fourteenth Amendment to the Constitution of the United States may be waived, as by voluntary invitation or consent to search and seize. (State v. Emory, 193 Kan. 52, 55, 391 P. 2d 1013; State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; State v. Ward, 199 Kan. 23, 427 P. 2d 586; State v. McCarty, 199 Kan. 116, 427 P. 2d 616, cert. den. as to McCarty, 392 U. S. 308, 20 L. Ed. 2d 1115, 88 S. Ct. 2065.) Whether the appellant consented orally or in writing or by both means is immaterial. The record contains clear and convincing undisputed evidence that he voluntarily consented to the search of his apartment by Detective Bennett and his fellow officer. No claim is made that his consent to the search was the result of coercion, duress or fraud, or that he lacked sufficient intelligence to appreciate the consequences of the act he consented to. The appellant’s consent to the search dispensed with the necessity of a search warrant altogether, and his reliance on Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, is not well founded. The test in Mapp is whether the search was reasonable. There was nothing unreasonable about the search in the instant case — the appellant consented to the search and went with the officers to his apartment where the search was lawfully and reasonably conducted.
The appellant contends the district court erred in overruling his motion for a continuance prior to commencement of the trial on September 11, 1967. Counsel was retained by the appellant on August 8, 1967, over one month prior to the trial. During a part of that time he was engaged in habeas corpus on behalf of the appellant in the same court which proceeding concluded Septem ber 6. The facts speak for themselves. As indicated, at the conclusion of the state’s evidence on September 11, the appellant requested a continuance until September 12, to produce his only witness, his wife, Jean Pierson. His motion was granted but no witness was produced. When the trial resumed, he offered no evidence and rested his case.
There are a host of cases dealing with continuances in criminal cases and none of them are favorable to the appellant. The rule is that a continuance in a criminal case is largely within the discretion of the district court. In State v. Dickson, 198 Kan. 219, 424 P. 2d 274, it was held:
“The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced.” (Syl. 1.)
The appellant has made no showing that he was prejudiced by the denial of the continuance on September 11, and under the circumstances the district court did not abuse its discretion.
The point is made the district court abused its discretion in restricting counsel’s cross-examination of witness Pellow. It is claimed the appellant began to elicit testimony which impeached the integrity and veracity of the witness. The questioning related to Pellow’s relationship with a female employee, a relationship which the witness said his wife had “full knowledge.” Pellow testified that on the night of the robbery his wife was in New York and that the employee in question and his next door neighbor were in his home for dinner; that the employee was the cashier of a hotel he managed, and that they had spent the day together on a trip to Fort Osage. When counsel asked Pellow whether this was the first trip with the employee, the court sustained the state’s objection upon the ground the answer sought was immaterial.
It is contended that Pellow’s statements and recollections were vital in the state’s case, and that denying the appellant the opportunity to explore the veracity of the witness under the narrow fact situation presented, constituted an abuse of discretion. The point is not well taken. While our decisions recognize the general rule that a witness may be cross-examined for the purpose of disclosing his interest in the action, his hostile feeling, and the extent thereof, in order that the jury may determine the weight and credibility it will accord all, or any portion, of his testimony (State v. Collins, 162 Kan. 34, 174 P. 2d 126; State v. Rowland, 172 Kan. 224, 239 P. 2d 949, 30 A. L. R. 2d 455), they also recognize that the extent to which cross-examination of a witness may be allowed rests largely in the discretion of the district court, and its ruling will not be disturbed unless abuse of discretion is made to appear. (State v. Greenwood, 197 Kan. 676, 684, 421 P. 2d 24.)
The record clearly indicates the district court gave counsel considerable latitude in his cross-examination of Pellow, both as to his association with the employee and his identification of the appellant. The cross-examination consumed some twenty-five pages of transcript. In fact, and with respect to the question of how many years Pellow had associated with the employee, the record discloses that counsel withdrew the question. There is nothing to indicate the district court abused its discretion, and the appellant’s contention cannot be sustained.
It is lastly contended the district court erred in overruling the appellant’s motion to dismiss at the close of the state’s case. The complaint centered about Pellow’s testimony and his method of identifying the appellant — that it was only his piercing dark brown eyes. Be that as it may, it was Pellow’s testimony that the appellant was the person who robbed him. The fact that the appellant used the name of Ralph Pellow when booked into the Manhattan Beach jail and the fact that certain items stolen from Pellow were found in the appellant’s apartment in that city was certainly further evidence of his guilt. It is the function of the jury, not that of a court of appellate review, to weigh the evidence and pass upon its credibility. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287; State v. Phinis, 199 Kan. 472, 430 P. 2d 251, and a host of other cases.) After a careful study of the record and a scrutiny of the evidence we are of the opinion there was ample evidence tending to prove each and every essential element of the crime charged, and we hold the district court did not err in overruling the motion to dismiss. There was competent substantial evidence to support the verdict.
The appellant received a fair trial under the Constitution of the United States and the Constitution and Laws of the State of Kansas, and there was no error committed which was prejudicial to the substantial rights of the appellant. The district court did not err in overruling the appellant’s motion for a new trial, and the conviction and sentence are affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an action to enjoin Western Power and Gas Company, Inc., a public utility, from talcing plaintiffs’ land by eminent domain proceedings.
The power company sought to acquire 34.6 acres of land owned by the plaintiffs in separate proceedings pursuant to K. S. A. 26-501 et seq. While the condemnation proceedings were pending on appeal from the appraiser’s award the plaintiffs filed the present injunction action. The land is adjacent to property owned by the power company. It extends north to the south right-of-way line of U. S. Highway 154.
As a basis for injunctive relief the plaintiff-landowners allege the amount of land taken is excessive, unnecessary, unlawful and beyond the needs of the company.
The action was tried to the court. The court found in favor of the power company and entered judgment accordingly. The plaintiffs have appealed.
The plaintiffs do not question the company’s general right to exercise the power of eminent domain. They do question the right of the company to condemn the entire 34.6 acres. They contend the amount is excessive by ten acres. No particular ten acres is designated.
In Reinecker v. Board of Trustees, 198 Kan. 715, 426 P. 2d 44, we said:
“In the absence of a statute limiting the amount of land which may be appropriated for a public purpose, a grantee of the power of eminent domain is vested with reasonable discretion in determining the amount of land required for such purpose and its discretion may not be disturbed on judicial review unless there has been fraud, bad faith or an abuse of discretion.” (Syl. 1)
A public utility with the power of eminent domain is vested with a reasonable discretion to determine the amount of land necessary for its lawful corporate purposes and when such discretion is exercised it will not be disturbed on judicial review unless fraud, bad faith or an abuse of discretion is shown. (See Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373 and Reinecker v. Board of Trustees, supra.)
The land is being condemned in the present case for a plant site to accommodate an electric generating and transmission station. It is conceded this is a lawful corporate purpose of the company for which its power of eminent domain may be exercised.
In determining the acreage needed by a public utility to carry out its lawful purposes, not only present demands but also demands which can be fairly and reasonably anticipated for the future may be taken into consideration. (Soden v. State Highway Commission, 192 Kan. 241, 387 P. 2d 182; Reinecker v. Board of Trustees, supra.)
The facts in this case do not indicate fraud, bad faith or abuse of discretion on the part of the power company in its exercise of this discretionary authority.
The evidence indicates the company has begun an expansion program at Dodge City. The immediate expansion includes the installation of a fourth generating and transmission unit at an estimated cost of $15,000,000. The addition will include a 150,000 kilowatt generator, sub-station, cooling tower, transmission lines and associated facilities such as access roads and parking area. The completion date is set for 1969.
The land being condemned for a plant site is sufficient in area to permit the construction of this fourth unit plus a fifth unit. An officer of the company testified there had been a national average annual increase of 8% in the consumption of electric power during the preceding ten years. The increase for Western Power and Gas Company, Inc., was slightly above the national average. Western’s peak kilowatt load had risen from 100,000 in 1957 to 240,000 in 1967. The capacity of the fourth generating and transmission unit would be reached by 1972 or 1973 based upon the past history of the company. At that time it would be necessary to have the fifth unit in operation on this plant site. The construction of a fifth unit would fully develop the 34.6 acre site as far as it is feasible to do so.
The plant site at Dodge City contains 70 acres, including the acreage being condemned. The company owns generating stations at Great Bend and Liberal, Kansas. The plant site at Great Bend is located on a tract of 100 acres. The plant site at Liberal is located on an 80 acre tract. The Great Bend station has a peak kilowatt capacity of 140,000 and the Liberal station has a 64,000 kilowatt capacity. The Dodge City station will have a peak kilowatt capacity of 180,000 when the fourth unit is completed in 1969.
The total acreage of the Dodge City station compares favorably to the facilities at Great Bend and Liberal.
An engineering layout and plat showing the location of the present and future facilities completing development on this site was introduced in evidence. A vice-president of the company was called as a witness by the plaintiff. He testified it was necessary to use the entire acreage condemned to fulfill present and future demands for power which might be fairly and reasonably anticipated in the next five years. He stated these anticipated demands were based upon reasonable and prudent judgments normally used by him in this business. These judgments were based upon known historical trends in the consumption of electrical power which his company had experienced.
The acreage sought to be condemned for plant site development does not appear excessive. On the record before us there is no showing of fraud, bad faith or abuse of discretion on the part of the power company or its officers in condemning the entire 34.6 acres of land. In determining the acreage needed the company properly considered, not only present demands but also demands for electric power which were fairly and reasonably anticipated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Stephen Decatur Milum, was charged along with two other persons of robbing the manager of a Seven-Eleven Food Store in Johnson county of approximately $200. At his separate trial the defendant was convicted by a jury of robbery in the first degree (K. S. A. 21-527) and sentenced to the state penitentiary for a term of not less than twenty nor more than forty-two years under the habitual criminal act.
Two specifications of error are urged on appeal: (1) the admission of certain evidence, and (2) the denial of defendant’s motion for a continuance.
At the trial William Gene Cunningham, one of defendant’s alleged accomplices, testified for the state. Over defendant’s objection the court admitted into evidence a note received by Cunningham while he and the defendant were incarcerated in the Jackson County, Missouri, jail subsequent to the offense in question. Cunningham testified the note was delivered to him by a trusty. The note stated: “Say, Cunningham, you punk, if you testify again me I am going to have you taken care of. So just think about this. So if you don’t want your . . ., don’t say anything. Steve.” Cunningham stated he did not know anyone else in the jail by the name of “Steve,” nor had he ever been in trouble with anyone by that name, other than the defendant. The witness, however, was unable to identify the handwriting as being that of the defendant. Defendant’s objection at trial, and here, is that there was insufficient foundation regarding the authenticity of the note, particularly since there was an absence of proof that it was written or signed by the defendant. We cannot agree.
K. S. A. 60-464 requires authentication of a writing before it may be received in evidence. Authenticity, like any other fact, may be proved by evidence which warrants such a finding. As a general rule, preliminary to the introduction of a letter or note in evidence, its execution must be proved or its authenticity established. (Motor Sales Co. v. Brown, 115 Kan. 344, 223 Pac. 309.) Authenticity or genuineness of a writing may be proved not only by establishing the genuineness of the writer’s signature, or identity of the handwriting contained in the instrument, but also, under proper circumstances, by indirect or circumstantial evidence without resort to proof of handwriting. (29 Am. Jur. 2d, Evidence, § 879; 32 C. J. S., Evidence § 706a; 23 C. J. S., Criminal Law § 850a.) In Wharton, Criminal Evidence § 577, 12th ed., it is stated:
“Ordinarily a letter . . . does not prove itself, . . . The mere fact that a letter . . . purports to have been written and signed by the person in question is insufficient to establish its authenticity and genuineness. This is particularly true when the genuineness of the letter is denied by the purported signer, . . .
“The usual method of proving its genuineness is by establishing the identity of the handwriting contained in the instrument, or by evidence that such letter . . . was signed or written by, or was in the possession of, authorized by, or within the knowledge of, the person by whom such instrument purports to have been written or executed. In other words, it must be satisfactorily shown by direct or circumstantial evidence that the letter . . . and the purported signer . . . are in some way connected.”
Proof of the genuineness of a letter may be established when the contents themselves reveal knowledge peculiarly referable to a certain person or the contents are of such nature that the letter could not have passed between persons other than the purported writer and the person to whom it was delivered. (Williamson v. Davis, 74 Okla. 174, 177 Pac. 567; Commonwealth v. Bassi, Appellant, 284 Pa. 81, 130 Atl. 311; Hartzell v. United States, 72 F. 2d 569 [8th Cir. 1934] cert. denied 293 U. S. 621, 79 L. Ed. 708, 55 S. Ct. 216; Wigmore, Evidence, 3d ed. § 2148.) For that matter, any relevant writing may be admitted when, from its contents or other circumstances in evidence, it is reasonably inferable that the author is the person sought to be charged. Whether or not the authenticity of a writing is sufficiently established to render it admissible in evidence is a matter largely within the discretion of the trial court. (Lundgren v. Union Indemnity Co., 171 Minn. 122, 213 N. W. 553, 52 A. L. R. 580; State v. Huffman, 141 W. Va. 55, 87 S. E. 2d 541.)
In State v. Huffman, supra, which was a rape prosecution, notes allegedly written by the defendant to the prosecuting witness while both were incarcerated in jail were introduced into evidence. The notes referred to the rape charge, were signed with the initials of the defendant, and urged the prosecutrix not to testify against him. The court held the notes were admissible on the basis their contents, together with the circumstances under which they were written and delivered to the prosecutrix, sufficiently established authorship by the defendant.
In the case at bar we are of the opinion that from the contents of the note in question, and the other circumstances in evidence, it could be reasonably inferred that the defendant was the author of the note; hence, there was sufficient foundation of the note’s authenticity for its admission into evidence.
Defendant further asserts the trial court erroneously denied his motion for continuance when during the presentation of his evidence James Hendrix, one of his alibi witnesses, failed to appear and testify. Defendant’s entire defense was based on a plea of alibi. We are told that four witnesses, in addition to the defendant, testified in support of his plea. On the day Hendrix was to appear, the defendant’s attorney informed the court Hendrix had previously promised he would be present to testify, but on that morning, in a telephone conversation, he had informed counsel he could not appear because his presence was required at his place of business, a bar. Without submitting an affidavit, counsel made a statement about what the testimony of the missing witness would be. Thereupon, counsel orally requested a continuance until the following day, or until Hendrix’s deposition could be taken. The trial judge denied the application for continuance after observing that the defendant had been arraigned and told more than ten days previously when his trial would be, that the witness was a nonresident of the state, that there was no assurance he would be present at another date, and that “insufficient showing” had been made.
Continuances in a criminal prosecution are governed by the provisions of the statute applicable in civil cases (K. S. A. 62-1414). Under K. S. A. 60-240 (c) of the code of civil procedure, the court need not entertain a motion for continuance based on the absence of a material witness unless supported by an affidavit setting forth certain essentials required by the statute, including a statement of the witness’ expected testimony and the basis of such expectation, and also the efforts which have been made to procure his attendance or deposition. The language of this portion of the subsection is substantially the same as that of our former statute (G. S. 1949, 60-2934) which made mandatory the filing of an affidavit in support of a motion for continuance. (State v. Earley, 192 Kan. 144, 386 P. 2d 221, and cases cited therein.) The legislature, however, added a sentence to the present subsection providing that, “In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not.” This provision is in harmony with the long-standing case law of this state to the effect that the matter of a continuance in a criminal prosecution is largely within the discretion of the trial court, and its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced. (State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. denied 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298.) The clear import of the proviso is that in the absence of an affidavit, it remains discretionary with the court whether or not it will entertain a motion for continuance because of the absence of a material witness.
Here, the defendant made no attempt to support his motion for a continuance with an affidavit, as contemplated by the statute. Thus, the state had no opportunity to admit that the absent witness would, if present, testify as stated in an affidavit, and that the testimony could be received and considered in evidence. It is apparent that defendant, his relatives and his counsel relied solely upon the witness’ promises to be present and testify. Despite the fact that the case had been set for trial more than ten days previously and that Hendrix was listed as a witness in defendant’s notice of plea of alibi filed six days prior to trial, no effort was made to obtain the testimony of the nonresident witness by invoicing the provisions of K. S. A. 62-1313 and 62-1314, nor was any attempt made to insure the witness’ attendance by use of the uniform act to secure attendance of witnesses from without the state (K. S. A. 62-2801, et seq.). Under the circumstances, the defendant is in no position to claim he was denied the opportunity to obtain the testimony of the absent witness or procure his attendance. This court has said that a party seeking a continuance on account of an absent witness must show he has used due diligence to procure the testimony of the witness (State v. Caton, 134 Kan. 128, 4 P. 2d 677; State v. Callison, 119 Kan. 532, 240 Pac. 850), and that the party is not justified in relying on mere promises of the witness that he will be present at trial and testify (Clouston v. Gray, 48 Kan. 31, 28 Pac. 983). We must conclude that the trial court did not abuse its discretion in denying the motion for continuance.
The defendant also complains of the trial court’s refusal to grant him a new trial. He advances no reasons other than those previously discussed and found to be without merit.
The judgment is affirmed. | [
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