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The opinion of the court was delivered by
O’Connor, J.:
This was a garnishment proceeding to determine the extent of the insurer’s liability where a judgment rendered against its insured exceeded policy limits.
The plaintiff, Walter Bollinger, recovered a judgment for $30,483.84 against the defendant, Karl Nuss. Defendant’s insurer, Western Casualty and Surety Company, using the services of Mr. Tudor W. Hampton, an attorney of the Barton County Bar, defended the case under the obligations of its policy. After the insurer paid its policy limits of $25,000 into court, an order of garnishment was issued against the insurer. Both plaintiff and defendant took issue with the garnishee-insurer’s answer which stated it owed nothing further on the judgment. The issue tried to the court at the garnishment hearing was whether or not the garnishee-insurer was negligent or acted in bad faith in respect to settlement negotiations and in the defense of the case. The lower court determined the matter in favor of the garnishee-insurer, and plaintiff and defendant have appealed, stating their respective positions on appeal are identical, and presenting the points to be considered in a single brief.
Although the several points urged by appellants all relate to the proceedings in garnishment, the principal question centers on the trial court’s determination that the insurer was not negligent and did not act in bad faith during the course of settlement negotiations, or in conducting the defense of the action on behalf of the defendant-insured. Since there was some conflict between the testimony of the defendant and that of Mr. Hampton, who were the only witnesses at the garnishment hearing, we will summarize the evidence in the light most favorable to the prevailing party below, the garnishee-insurer.
On November 3, 1963, as plaintiff was walking across the street, he was struck by an automobile driven by the defendant. Plaintiff sustained bodily injuries which necessitated hospitalization, and treatment by several physicians. His actual medical and hospital expenses, as later determined by the jury, amounted to $2,873.84.
Plaintiff filed suit on September 30, 1964, against defendant for $85,000. As previously indicated, the maximum coverage provided by defendant’s policy was in the amount of $25,000. After the action was filed, an associate of Mr. Hampton dispatched a letter by certified mail to the defendant. The pertinent portions of that letter follow.
“This is to advise you the amount sued for in said petition is in excess of your coverage under your policy with Western Casualty and Surety Company, your insurance carrier. The company will, of course, defend you to the limits of your policy, but if on account of the demand in excess of your coverage you wish to employ counsel at your cost to represent your interests, above your coverage or make an independent investigation of the accident in question, feel free to do so. However, unless you wish legal representation of your own to represent your interests as may be involved, it will not be necessary to take such steps as we as attorneys for your company will represent your personal interests without costs to you.
“Rest assured everything possible will be done to protect you in accordance with the terms and within the policy limits.”
After a conference with Mr. Hampton about the letter, and also a discussion of the facts pertaining to the accident, defendant stated he would be satisfied if Hampton would “go ahead and handle the case on his behalf along with the insurance company.” Hampton further advised defendant he would have to pay any amount over and above the policy limits. Hampton testified, “I advised him that if it [the judgment] went above $25,000.00, it would be his baby, he would have to take care of that.” Thereupon, Hampton filed an answer denying negligence on the part of the defendant and alleging that plaintiff was contributorilly negligent. An exchange of interrogatories and the taking of depositions, including that of one of plaintiff’s doctors, followed. Medical reports from plaintiff’s doctors were also made available to Hampton, who, in turn, discussed their contents with defendant. Hampton told defendant about plaintiff’s alleged permanent injuries, that the major disability claim was loss of hearing, and that plaintiff “had a hole in the side of his leg.” Defendant was also informed of the approximate medical expenses being claimed.
During pendency of the action defendant made twenty to thirty visits to Mr. Hampton’s office to discuss the case. At these conferences defendant always maintained that plaintiff was partly to blame for the accident because, in defendant’s opinion, had plaintiff been paying attention to where he was going, he would have seen defendant’s automobile and gotten out of the way. Rut Hampton told the defendant the defense of contributory negligence would be very difficult to prove because of plaintiff’s alleged loss of memory and lack of an eyewitness.
It appears that at a pretrial conference (the date not disclosed in the record) plaintiff was informed of the insurer’s policy limits of $25,000. Prior to trial on June 20, 1966, Hampton made two offers of settlement, both of which were with defendant’s knowledge: the first for $7,500 in March 1966; the second for $10,000 about a week before trial. Hampton had recommended, and received authority from the insurer, to settle the case if it could be accomplished in the range of $10,000. The only offer submitted by plaintiff’s counsel was in a letter dated May 11, 1966, in the amount of $23,500. The offer was discussed by Hampton and the defendant. Both expressed the opinion plaintiff would not receive that much money if the case were tried. In response to a question by Hampton, the defendant said, “Let’s try it,” and Hampton said, “All right, we will try it.” Hampton told defendant he thought the verdict would “hit somewhere between ten to twenty thousand dollars.”
At trial, in addition to his own testimony, plaintiff offered the testimony of four physicians who had treated or examined him. After plaintiff rested, and during the noon recess, Hampton and defendant had lunch together and discussed the case. Hampton informed him there had been no evidence thus far to prove plaintiff was contributorily negligent and that “it might be better under those circumstances to admit that we were the negligent party involved here, and ask for mercy in the amount of money.” Hampton said he thought this would be good strategy. The decision was made to put the defendant on the stand “in the hopes that the jury would realize that he was a pretty good fellow,” and also to tell how the accident happened.
Hampton did not seek to have plaintiff examined by doctors and, consequently, did not present any evidence regarding plaintiff’s physical condition or claimed injuries. Hampton explained his decision by saying drat after he reviewed all the medical reports made available to him by plaintiff’s counsel, he thought the finding were reasonably accurate and that he “might as well go with their doctors instead of taking a chance of getting a doctor that would help them out more than what they had.”
In his final argument to the jury, Hampton admitted liability on the part of the defendant-insured and suggested the only question to be decided concerned the amount of the verdict. Despite the admission, the case was submitted to the jury as if defendant’s negligence and plaintiff’s contributory negligence remained as issues in the case. Following the verdict, Hampton, on behalf of the defendant, filed a motion for new trial, or in the alternative, a remittitur, the same being overruled by the trial court.
After hearing all the evidence at the garnishment hearing, the trial judge made rather extensive comments to the effect the verdict, in his opinion, was larger than anyone could reasonably have forecast. He specifically found there was no evidence of fraud, bad faith or negligence in the handling of the lawsuit. Thereupon, judgment was entered in favor of the garnishee-insurer.
Appellants strenuously argue that the trial court’s findings were not supported by substantial, competent evidence, and judgment should have been granted in their favor as a matter of law. They base their argument principally on the proposition that under the undisputed evidence, the insurer was negligent and acted in bad faith in declining to settle the case within policy limits.
We note that the garnishee-insurer has abandoned any contention that the plaintiff, as a judgment creditor of the insured, cannot maintain a direct action, or institute garnishment proceedings, against the insurer for an excess judgment, based on bad faith and negligence on the part of the insurer in refusing to settle within policy limits (e. g., see, Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S. W. 2d 914; Murray v. Mossman, 56 Wash. 2d 909, 355 P. 2d 985, and cases cited therein). Since the appellants present their argument as if their respective positions are identical, the insurer appears content to disregard any question of plaintiff’s right to complain of negligence or bad faith of an insurer toward its insured.
The insurance policy was not made a part of the record. We are told, however, it was a standard-type liability policy reserving to the insurer the right to make such investigation and settlement of any claim or suit as it deemed expedient. Of course, under such a policy, the insurer is obligated to defend any action against the insured, even if the suit is groundless, false or fraudulent.
The area of the law involving an insurer’s liability for judgments in excess of policy limits has been fraught with uncertainty from its inception. Two theories of liability denominated as the “negligence theory” and the “good faith theory” have arisen, both recognizing an insurer’s amenability to suit, but disagreeing about the strict legal standard of conduct chargeable to it.
This court has had only scant occasion to consider the duty of an insurer in defending and settling claims or actions against its insured. In Anderson v. Surety Co., 107 Kan. 375, 191 Pac. 583, 21 A. L. R. 761, we said the insurer was liable for the full amount of the insured’s loss, irrespective of policy limits, if it was negligent in conducting the defense for the insured. The case apparently turned on the failure of the insurer to set up a violation of law as a defense; however, we note the insurer had an opportunity, but refused, to settle the claim within policy limits prior to trial.
A later case, Bennett v. Conrady, 180 Kan. 485, 305 P. 2d 823, involved an insurer’s liability in the settlement of less than all of several claims against its insured. There, for the first time, the court spoke of bad faith, as well as negligence, and stated the rule to be applied was that the insurer of a liability or an indemnity policy would be liable for the full amount of its insured’s resulting loss, even if that amount exceeds the limit of the policy, for negligence or bad faith in defending or settling an action against the insured. The court noted that once the insurer steps into the negotiations between its insured and an injured claimant, due care must be exercised by the insurer to protect the rights of the insured. The degree of care to be exercised by the insurer in the settlement of claims was said to be that which a person of ordinary care and prudence would exercise in the management of his own affairs. The opinion emphasizes the wide variation in the decisions applying the negligence test or good faith test in respect to the duty of the insurer to consider the interests of the insured in approving or rejecting a settlement within policy limits. The court also stated:
“Because of possible conflict of interest between an insurance company and its insured in the defense or settlement of claims against the insured there is a mutual fiduciary relationship whereby each owes the other the duty to exercise reasonable care in conducting such defense or settlement.” (Syl. f 5.)
Under the facts and circumstances of that case the court concluded the insurance company exercised due care to protect the rights of its insured and acted in good faith in making the settlements.
The Anderson and Bennett cases have apparently led to some confusion among the annotators and textwriters as to whether Kansas recognizes both the negligence test and the good faith test. (See, Anno. 40 A. L. R. 2d 168; 14 Couch on Insurance 2d, §§ 51:132, 51:135; 7A Appleman, Insurance Law and Practice §§ 4712, 4713.) We read these cases to mean that liability may be imposed against the insurer on either theory. In other words, the insurer, in defending and settling claims against its insured, owes to the insured the duty not only to act in good faith but also to act without negligence.
In the vast majority of cases passing upon the question, the courts have held that a liability insurer, having assumed control of the right of settlement of claims against the insured, may become liable in excess of its undertaking under the policy provisions if it fails to exercise good faith in considering offers to compromise the claim for an amount within the policy limits. (See, Anno. 40 A. L. R. 2d 168 § 4.) While some courts have expressly rejected the negligence test and permitted recover only if the insurer has failed to exercise good faith (Brown v. Guarantee Ins. Co., 155 Cal. App. 2d 679, 319 P. 2d 69, 66 A. L. R. 2d 1202; Murach v. Massachusetts Bonding & Ins. Co., 339 Mass. 184, 158 N. E. 2d 338; Radio Taxi Service, Inc. v. Lincoln Mutual Insurance Co., 31 N. J. 299, 157 A. 2d 319; Maroney v. Allstate Ins. Co., 12 Wis. 2d 197, 107 N. W. 2d 261), we are not inclined to do so. Public policy dictates that the insured’s interests be adequately protected, and we believe this may be best accomplished by holding that both due care and good faith are required of the insurer in reaching the decision not to settle. (See, Dalrymple v. Alabama Farm Bureau Mutual Ins. Co., 267 Ala. 416, 103 So. 2d 711; Southern Farm Bureau Casualty Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36; State Farm Mutual Automobile Insurance Co. v. Jackson, 346 F. 2d 484 [8th Cir. 1965], applying Arkansas law with instructions on both theories; Cernocky v. Indemnity Ins. Co. of N. America, 69 Ill. App. 2d 196, 216 N. E. 2d 198; Murray v. Mossman, supra; United States Fidelity and Guaranty Company v. Lembke, 328 F. 2d 569 [10th Cir. 1964], applying Colorado law; Fidelity and Casualty Company of New York v. Robb, 267 F. 2d 473 [5th Cir. 1959], applying Texas law.)
The imposition of liability against an insurer for failing to exercise due care in settling a suit is perhaps a stringent standard by which to measure the insurer’s duty. In fact, it has been said less culpability is involved in the application of the negligence test than the good faith test. (Brown v. Guarantee Ins. Co., supra.) It must be remembered, however, that the insured has surrendered a valuable right: that of conducting an investigation and considering possible offers of settlement. Since the absolute control of the defense is turned over to the insurer so that it may reject settlements within policy limits, and as a result, expose the insured to payment of all sums in excess of policy limits, surely it is not asking too much to require the insurer to act without negligence.
Typical of those jurisdictions which have employed the negligence or due care theory in determining whether or not the insurer rendered itself liable to the insured when it dealt with a settlement matter is the state of New Hampshire. In Douglas v. Company, 81 N. H. 371, 127 Atl. 708, 37 A. L. R. 1477, the court stated:
“. . . Our law upon the subject is based upon the broad proposition that in all its dealings with the defense to Elliott’s claim the defendant was bound to act as a reasonable man might act under the same circumstances.
“The fundamental question is, does or does not the insurer owe to the insured a duty in the matter of a settlement? If it does not owe such a duty, it is not liable either for a failure to act or for the manner of action. It may refrain from completing a settlement for any reason, however essentially dishonest, and still there would be no liability. If, as the cases roundly state, it has an exclusive and absolute option, no one can question its motives for the exercise or non-exercise of the privilege. No case has gone that far. All acknowledge a liability for fraudulent conduct, or lack of good faith, in refusing to settle. But they are silent as to any reasoning which would sustain such liability and at the same time deny responsibility for negligent conduct.
“The whole question of insurance against loss may be laid out of the case, and still the defendant would be accountable for negligence. It had contracted to take charge of the defense of this claim. That contract created a relation out of which grew the duty to use care when action was taken. The insurer entered upon tire conduct of the affair in question. It had and exercised authority over the matter in every respect, even to negotiating for a settlement. It is difficult to see upon what ground it could escape responsibility when its negligence resulted in damage to the party it had contracted to serve. . . .” (pp. 375-376.)
The Douglas case was quoted and followed in Dumas v. Hartford &c. Ind. Co., 94 N. H. 484, 56 A. 2d 57, where the court added:
“. . . It is a well-recognized rule in the law of negligence that, when one knows or has reason to anticipate that the person, property, or rights of another are so situated as to him that they may be injured through his conduct, it becomes his duty so to govern his action as not negligently to injure the person, property, or rights of that other. . . .” (p. 488.)
No attempt will be made to group the many cases dealing with the duty of the insurer to settle or compromise a claim against its insured. That has been admirably accomplished by the author of the extensive annotation in 40 A. L. R. 2d 168. As we indicated in Bennett v. Conrady, supra, the generally accepted rule in all jurisdictions is that in rejecting a compromise offer of settlement within policy limits, the insurer is bound to give some consideration to the insured’s interests. The universal recognition that the insurer owes a duty, however, has not yielded rules which clearly define that duty. The decisions often hinge upon the question of whether the insurer’s liability is to be determined by the criteria of good faith or by that of due care. As a result, the development of these tests has not produced rules susceptible to easy application. The decisions indicate a tendency to determine liability upon a case-by-case basis.
The dichotomy developed in the early cases, depending on whether the insurer’s obligation was measured by good faith or due care, has tended to dissipate. Actually, the divergency between the good faith test and negligence test may be more a difference in verbiage than results. While the terms “negligence” and “bad faith” are not synonymous or interchangeable in a strict legal sense, they share common hues in the insurer’s spectrum of duty, and the distinction between the tests is less marked than the terms would suggest. Professor Keeton, in his article Liability Insurance and Responsibility For Settlement, 67 Harv. L. Rev. 1136 (1954), emphasizes the lack of distinction by pointing out that even those jurisdictions following the bad faith rule recognize, at least by implication, that the company must, if it fails to settle, defend with ordinary care, and that negligence in investigation which leads to a mistake in failing to settle is also a breach of this duty of ordinary care of defense. Furthermore, a minimizing effect of the distinction is the adoption by some courts of a dual standard requiring not only good faith as to the decision regarding settlement, but also ordinary care in the investigation leading to such decision. (See, Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 231 N. W. 257; Radio Taxi Service, Inc. v. Lincoln Mutual Insurance Co., supra; Gedeon v. State Farm Mut. Auto. Ins. Co., 410 Pa. 55, 188 A. 2d 320.) We further noted in Rennett v. Conrady, supra, that in the more recent cases the two tests have tended to coalesce, so that even those courts which reject the negligence test and apply exclusively the test of good faith, nonetheless, consider the insurer’s negligence relevant in determining whether or not the insurer exercised the requisite good faith (e. g., Henke v. Iowa Home Mutual Cos. Co., 250 Iowa 1123, 97 N. W. 2d 168; Anno. 40 A. L. R. 2d 168 § 6; 7A Appleman, Insurance Law and Practice §§ 4712, 4713; 14 Couch on Insurance 2d § 51:135; 7 Am. Jur. 2d, Automobile Insurance § 156; 45 C. J. S., Insurance § 936b).
The provisions of the policy requiring the insurer to defend also encompass the negotiation of any settlement prior to trial. When a claim is made against the insured for an amount in excess of the policy coverage, the insurer’s obligation to defend creates a conflict of interests on its part. On the one hand, its interests lie in minimizing the amount to be paid; on the other, the insured’s interests, which the insurer is supposedly defending, lie in keeping recovery within policy limits, so that he will suffer no personal financial loss. The conflict becomes particularly acute where there is an offer of settlement approximating policy limits. The insured’s desire to avoid the risk of a large judgment by settling within the limits of the policy, regardless of the merits of the claim, would compel him, were he in charge of settlement negotiations, to accept the offer. The insurer’s interests, on the other hand, are prompted by its own evaluation of the liability aspects of the litigation and a desire not to expose itself to payments which do not adequately reflect the dangers that might be involved in pursuing the case to trial. When the settlement offer approaches policy limits, the insurer has a great deal less to risk from going to trial than does the insured, because the extent of its potential liability is fixed.
Notwithstanding that the typical liability insurance policy completely subordinates the insured’s interests to those of the insurer by a clause giving the insurer full settlement rights, the insurer has a duty to consider the interests of the insured in all settlement negotiations. Whether the conduct of the insurer is measured by good faith or ordinary care, the real question is the degree of consideration which an insurer must give to those interests of the insured which conflict with its own. Although the decisions run the gamut from the extreme, that the insurer is entitled to regard its own interests as paramount, to the opposite, that the insured’s interest must be given priority (Anno. 40 A. L. R. 2d 168 § 5), we are inclined to the view that the insurer may properly give consideration to its own interests, but it must also give at least equal consideration to the interests of the insured.
The rule of equal consideration is expressed in reference to the requirement of good faith in American Fidelity & Casualty Co. v. G. A. Nichols Co., 173 F. 2d 830 (10th Cir. 1949):
“When a liability insurance company by the terms of its policy obtains from the insured a power, irrevocable during the continuance of its liability under the policy, to determine whether an offer of compromise of a claim shall be accepted or rejected, it creates a fiduciary relationship between it and the insured with the resulting duties that grow out of such a relationship. Under policies like those here involved, the insurer and the insured owe to each other the duty to exercise the utmost good faith. While the insurance company, in determining whether to accept or reject an offer of compromise, may properly give consideration to its own interests, it must, in good faith, give at least equal consideration to the interests of the insured and if it fails so to do it acts in bad faith.” (p.832.)
Similar expressions may be found in numerous cases cited in Later Case Service to Anno. 40 A. L. R. 2d 168 § 5, including Comunale v. Traders & General Ins. Co., 50 Cal. 2d 654, 328 P. 2d 198, 68 A. L. R. 2d 883; General Accident Fire & Life Assur. Corp. v. Little, 103 Ariz. 435, 443 P. 2d 690, United States Fidelity and Guaranty Co. v. Lembke, supra, applying Colorado law; Moore v. United States Fidelity & Guaranty Company, 325 F. 2d 972 (10th Cir. 1963), applying Oklahoma law; and Prickett v. Hawkeye-Security Insurance Company, 282 F. 2d 294 (10th Cir. 1960).
As Professor Keeton suggests, equal consideration of the conflicting interests of the company and the insured means consideration of each portion of the total risk without regard to who is bearing that portion of the risk. Stated differently, it means consideration of the risk as a unit without regard to who is bearing each portion of the risk. This undoubtedly is the meaning intended by courts which have said the insurer must accord the interests of its insured the same faithful consideration it gives its own interests, and that the fairest method of balancing the interests is for the insurer to treat the claim as if it alone were liable for the entire amount. (American Fidelity & Cas. Co. v. L. C. Jones Trucking Co., [Okla.], 321 P. 2d 685; Kuzmanich v. United Fire and Casualty, 242 Ore. 529, 410 P. 2d 812; Cowden v. Aetna Cas. & Surety Co., 389 Pa. 459, 134 A. 2d 223; Bell v. Commercial Insurance Co. of Newark, N. J., 280 F. 2d 514 [3d Cir. 1960], applying Pennsylvania law.)
A statement of the Arizona court in General Accident Fire & Life Assur. Corp. v. Little, supra, supports our conclusion as to the proper application of the equal consideration doctrine:
“. . . the evaluation of a case should not be determined by looking to the policy limits. When an insurance company evaluates a claim without looking to the policy limits and as though it alone would be responsible for the payment of any judgment rendered on that claim it views that claim objectively, and in doing so renders ‘equal consideration’ to the interests of itself and the insured. (Citing cases.)” (p. .)
The result is that under the negligence test the insurer must conduct itself with that degree of care which would be used by an ordinarily prudent person in the management of his own business, with no policy limits applicable to the claim. Likewise, under the good faith test, the insurer must in good faith view the situation as it would if there were no applicable policy limits. (Keeton, Liability Insurance and Responsibility For Settlement, 67 Harv. L. Rev. 1136 at 1147-1148.)
In respect to what particular acts, conduct or circumstances are sufficient to charge the insurer with liability to the insured because of the failure of the insurer to accept an offer of compromise, much the same factors are generally relied upon in those cases finding a breach of good faith as in those finding negligence on the part of the insurer. (7 Am. Jur. 2d, Automobile Insurance § 157; Anno. 40 A. L. R. 2d 168 §§ 10, 11; 7A Appelman, Insurance Law and Practice § 4712; 14 Couch on Insurance 2d § 51:139.) While negligence has been used by some courts to mean the same thing that other courts have designated as bad faith, it would appear that the two rules have tended to merge. In the final analysis, the question of liability depends upon the circumstances of the particular case and must be determined by taking into account the various factors present, rather than on the basis of any general statement or definition.
In deciding whether the insurer’s refusal to settle constituted a breach of its duty to exercise good faith, the California court, which, incidentally, recognizes the “equality of consideration” doctrine, said in Brown v. Guarantee Ins. Co., supra:
“. . . the following factors should be considered: [1] the strength of the injured claimant’s case on the issues of liability and damages; [2] attempts by the insurer to induce the insured to contribute to a settlement; [3] failure of the insurer to properly investigate the circumstances so as to ascertain the evidence against the insured; [4] the insurer’s rejection of advice of its own attorney or agent; [5] failure of the insurer to inform the insured of a compromise offer; [6] the amount of financial risk to which each party is exposed in tire event of a refusal to settle; [7] the fault of the insured in inducing the insurer’s rejection of the compromise offer by misleading it as to the facts; and [8] any other factors tending to establish or negate bad faith on the part of the insurer.” (p. 689.)
Several of the factors enumerated by the California court are not in issue here. For example, there was never any discussion about the defendant-insured making any contributions toward a settlement; there is nothing in the record to indicate the insurance company rejected Mr. Hampton’s advice; no contention is made that die insurer failed to keep the insured informed about any settlement offers; nor is it claimed the insurer rejected an offer because the insured misled it as to the facts.
Appellants’ argument that the insurer acted negligently and in bad faith in refusing to settle the case within policy limits centers on three factors: (1) failure of the company to inform the defendant about certain matters, such as the medical reports concerning plaintiff’s alleged injuries, the case was one of virtually absolute liability, trial counsel’s plan to admit liability during final argument, and steps and procedures the defendant could take for his own protection; (2) the company’s refusal to settle, although it realized this was a case of absolute liability; and (3) the proposition that by rejecting the $23,500 offer, the company was gambling with only $1,500 of its own money as against over $60,000 of the insured’s.
The thrust of appellants’ argument relating to the insured being adequately informed suggests that he in some way was misled by lack of known information in the hands of the insurer pertaining to issues of liability and the extent of plaintiff’s claimed injuries. A duty is imposed on the company to communicate to the insured the results of any investigation indicating liability in excess of policy limits and any offers of settlement which have been made, so that he may take proper steps to protect his own interests. (Davy v. Public National Ins. Co., 5 Cal. Rptr. 488, 181 Cal. App. 2d 387.) The record discloses no evidence indicating the insurance company failed to make a reasonably adequate investigation as to the liability question and the nature and extent of plaintiff’s injuries. Hampton testified he discussed the contents of plaintiff’s medical reports with the insured. While it is true counsel did not see fit to have the plaintiff examined, and did not offer any medical testimony to rebut that of plaintiff, we are unable to say that this in itself constituted bad faith or negligence within the facts and circumstances of the entire case. Hampton apparently had a reasonable basis in exercising his judgment that even if plaintiff’s injuries were as claimed, a verdict in excess of policy limits was extremely unlikely. Furthermore, it cannot be said the insured labored under any delusion about plaintiff’s claimed injuries.
In respect to steps the insured could take to protect his interests, Hampton informed him at the inception of the case he could employ independent counsel. Moreover, insured was repeatedly advised throughout the case he would be liable for any judgment in excess of $25,000. Despite this knowledge, the insured made no attempt to obtain other counsel.
We need not labor the point that the case was to be gauged as one of absolute liability, and that the insured was misled into thinking otherwise. Hampton made absolutely clear to the insured the practical difficulties involved with the defense of contributory negligence because of plaintiffs alleged loss of memory and the lack of eyewitnesses to the accident. We might add that as matters developed at trial, we think Hampton was justified in admitting liability to the jury as part of his trial strategy. The insured was told of the weakness of the defense, and the trial tactic later employed was the subject of the luncheon conversation between Hampton and the insured after plaintiff had rested his case. An attorney must be given considerable leeway in trying a lawsuit, and ordinarily the matter of trial strategy must be left in his hands rather than in the hands of his client. Especially where the evidence negativing liability is weak, as apparently it was here, the admission of liability may tend to work psychologically in favor of the defense in relation to the amount of recovery.
Appellants’ complaints discussed thus far go more to counsel’s conduct of the defense, which we have said may be measured by the strict negligence standard. (Anderson v. Surety Co., supra.) We agree with the trial judge’s comment at the conclusion of the garnishment hearing that:
“. . . I have seen nothing to indicate Mr. Hampton . . . was not completely fair and open in advising Mr. Nuss. . . .
“. . . there is no evidence to indicate that this matter was handled with less ability, less judgment, than it would have been handled by the ordinary practitioner in this area.”
This brings us to the rejection of the settlement offer for $23,500, which was $1,500 less than the limits of the policy. As we have indicated, the amount of financial risk to which each party is exposed in the event of a refusal to settle is a relevant factor to be considered in determining whether the insurer is liable for the entire judgment. The strength of plaintiff’s case must be gauged as it appeared at the time the offer was refused. As all can now see through hindsight, it would have been better for both the insured and the insurer to have accepted the offer. In Ferris v. Employers Mutual Cas. Co., 255 Iowa 511, 112 N. W. 2d 263, it was stated:
. . We may not measure the reasonableness of the offer by the ultimate result of the litigation; it must be considered in the light of the case as it fairly appeared to the insurer and its authorized agents and attorneys at the time the offer was made. . . (p. 523.)
The value of an unlitigated claim must be determined on its own apparent merits, or lack of them, the possibility of liability being established, and on the injuries and their extent being proven. (General Accident Fire & Life Assur. Corp. v. Little, supra.)
Even if we assume Mr. Hampton thought there was absolute liability, both he and the insured were of the opinion that plaintiff could not recover $23,500 if the case were tried. In fact, Mr. Hampton thought a verdict would be somewhere between $10,000 and $20,000. Of course, any evaluation of the claim by the insurer and its representatives must have been objectively made as though it alone would be responsible for the payment of any judgment rendered. The company, pursuant to Hampton s recommendation, had authorized a settlement figure of $10,000. Upon the basis of the record it does not appear this was a case where the insurer could reasonably anticipate a verdict “greatly in excess of policy limits,” although a defendant’s verdict on the issue of liability may have been doubtful. (Jessen v. O’Daniel, 210 F. Supp. 317 [D. C. Mont. 1962].)
Whether an insurer in defending a claim and refusing an offer of settlement within policy limits was negligent or acted in bad faith is a question for the trier of fact in each case. (Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S. W. 2d 153.) Where the insurance company acts honestly and in good faith upon adequate information, it should not be held liable because it failed to prophesy the result. (General Accident Fire & Life Assur. Corp. v. Little, supra.) Something more than mere error of judgment is necessary to constitute bad faith. The company cannot be required to predict with exactitude the results of a trial; nor does the company act in bad faith where it honestly believes, and has cause to believe, that any probable liability will be less than policy limits. (Henke v. Iowa Home Mut. Cas. Co., supra; Hodges v. Standard Accident Ins. Co., 18 Cal. Rptr. 17, 198 Cal. App. 2d 564; and cases cited in 7A Appleman, Insurance Law and Practice § 4712; 14 Couch 2d on Insurance § 51:139.) Good faith on the part of the insurer implies honesty, fair dealing and adequate information. (Davy v. Public National Ins. Co., supra.)
We have here, at most, an error of judgment on the part of the insurer and its counsel, which, under the facts and circumstances, would warrant the conclusion that the insurer acted in good faith and without negligence. We hold that the trial court’s findings to that effect were supported by substantial, competent evidence and were not erroneous as a matter of law.
Appellants’ second point relates to the district court’s denial of a trial by jury of the issues in the garnishment proceedings. They advance the contention that as between themselves and the garnishee-insurer this was an action for the recovery of money on disputed issues, which normally would be triable by a jury. (See, K.S.A. 60-238.)
A proceeding in garnishment is regarded as a special and extraordinary remedy provided by statute. The statutory provisions governing the exercise of such a proceeding are conclusive and exclusive of all other provisions of the code of civil procedure pertaining to civil actions generally. (Domann v. Pence, 185 Kan. 702, 347 P. 2d 373; Reed v. Ziegler, 175 Kan. 635, 265 P. 2d 855; Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665.) Since garnishment is a statutory remedy, the question of whether or not factual issues arising therein are triable to the court or a jury is controlled by the provisions of the statute. Even where the statutes do not expressly provide for the manner of trial, their provisions as a whole may be looked to for some indication of the proper procedure. (6 Am. Jur. 2d, Attachment and Garnishment § 382; Annos. 88 A. L. R. 1151, 19 A. L. R. 3d 1393.)
A review of our garnishment statutes leads us to the conclusion that they contemplate issues of fact are to be tried to the court, and a jury trial may not be demanded as a matter of right. Specific reference is made to the “court” in at least two instances. K. S. A. 60-718 provides, in part:
“. . . If a reply is filed as herein provided, the court shall try the issues joined, . . .” (Emphasis added.)
and K. S. A. 60-721 states:
“Upon determination of the issues, either by admissions in the answer or reply, or by default, or by findings of the court on controverted issues, judgment shall be entered fixing the rights and liabilities of all the parties in the garnishment proceedings. . . .” (Emphasis added.)
It follows that appellants were not entitled to a jury trial on the factual issues as a matter of right.
Appellants further complain of the district court’s refusal to allow them to examine correspondence between the garnishee and its attorney. The request came during cross-examination of Mr. Hampton. The purpose of the request was stated by plaintiff’s counsel in the following language:
“. . . Now, I think that on many of these items Mr. Hampton has testified to it might be very material to see what the written advices were to the insurance company about tire various settlement offers made, about his various conversations with the assured, Mr. Nuss, in this case, and his overall assessment and evaluation of this case. . . .”
Mr. Hampton objected to producing the correspondence but stated he would gladly answer any question pertaining thereto, and in doing so, would refer to any pertinent information contained in the correspondence itself. In making his ruling, the trial judge observed there had been no showing that Hampton was “knowingly or unknowingly” giving false answers to the questions touching the area of inquiry.
The only argument of substance advanced in the appellants’ joint brief is to the effect the correspondence was relevant and not privileged as between defendant and garnishee, since Mr. Hampton represented both parties for their mutual benefit. (See, K. S. A. [now K. S. A. 1968 Supp.] 60-426 [b] [5].) The garnishee calls attention to a fact which is borne out by the record: that defendant did not join in the request by plaintiff’s counsel to examine the correspondence. Thus, the defendant is in no position to complain of the trial court’s ruling. Only the plaintiff, then, may contend the ruling was erroneous; yet he has made no attempt to show that the correspondence was not privileged as to him. Even if we assume, for the sake of argument, that the information was not privileged, plaintiff has failed to show any prejudice resulting from the trial court’s ruling. This matter arose as a part of cross-examination of the witness, and the trial court was free to exercise its discretion in determining the extent of such examination. The record discloses the court permitted counsel to conduct a thorough and extensive cross-examination of the witness. Frequent reference was made to the attorney’s file, occasionally to the point of the witness reading the correspondence aloud, and it would appear that counsel obtained all the information he was seeking. Under the circumstances, the ruling of the trial court will not be disturbed.
The district court’s judgment is affirmed in all respects. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from a judgment setting aside, as void, an assessment for lateral sewer improvements on plaintiffs’ property in the city of Merriam, Johnson county, Kansas.
No question is raised concerning the creation and existence of the sewer district or the general authority of its governing body to make sewer improvements and levy special assessments therefor. The assessment was made September 14, 1966, by the defendant board of county commissioners acting as the governing body of Lateral Sewer District No. T-39. The assessment and apportionment of costs for the improvements is governed by K. S. A. 19-2793 (L. 1965, Ch. 170, Sec. 2).
The applicable portion reads:
“All costs of any such lateral sewers whenever built, including, without excluding others, engineering and legal services, shall be spread equally per square foot over all land to a depth of one hundred fifty (ISO) feet measured from the front property line or to the rear property line if less than one hundred fifty (ISO) 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 parks; 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 (ISO) feet measured from the front property line, as herein provided, shall thereafter be served by said lateral sewers, 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 statute specifies that “front property lines” shall be determined in three ways (a) from recorded plats, (b) from recorded private restrictions, in the case of unplatted lands or (c) as determined by the governing body, in case of lands not so platted or restricted. The computation of assessments is tied to the establish ment of a front property line or lines for each lot or tract. The parties agree that front property lines were not established in this case under (a) or (b). So (c) applies and front property lines were to be determined by the governing body of the lateral sewer district.
A lateral sewer assessment of $1,796.98 was spread against plaintiffs’ property. The defendant board admits the assessment was computed on the basis of the total square feet contained in the entire tract.
Plaintiffs’ property consists of a rectangular tract of land 90 feet wide on the north and 245 feet deep on which is located a seven room house. The house faces north and is located fifty feet south of the north boundary. The tract is bounded on the north by 59th Street Terrace which is an east-west street used by the public and maintained by the city. The rear of the house is 165 feet from the south boundary. There are no open streets adjacent to the east, west or south boundaries. However, there is an unnamed, unopened, grass alley-way bordering the property on the south. This alley-way is twenty feet wide, begins at the southeast corner of the property and extends west along the south boundaries of plaintiffs’ tract and of two neighboring properties until it reaches Hemlock Street. Hemlock Street is the first north-south street lying west of plaintiffs’ tract.
The trial court made the following findings which relate to the location of the front property line of plaintiffs’ property:
“6. Building Permit No. 6806, issued November 29, 1949, by the Mission Urban Township, authorized the construction of the Hessell home so that it would front on the South side of 59th Terrace, facing North, and bear a street address of 8205 W. 59th Terrace.
“7. That plaintiffs’ home was constructed by them and has been occupied by plaintiffs since said date as their homestead and is the only improvement upon said premises.
“8. That while there apparently is no record of an official dedication of 59 th Terrace, it is an East-West street used by the public and maintained by the City of Merriam, Kansas.
“9. That it appears from the plat that the rear of plaintiffs’ property borders an unnamed, unopened 20-foot alley-way or right-of-way, which has never been used for public purposes.
“10. No filed plat or private covenant established a front property line to plaintiffs’ property, nor does the evidence show that plaintiffs indicated on the petition for the creation of said lateral sewer district that such property line was claimed.
“11. Plaintiffs’ seven room home is located upon said real property approximately 50 feet South of 59th Terrace, the postal address being 8205 W. 59th Terrace.”
The trial court concluded the only “front property line” of this property, as that term is used in K. S. A. 19-2793, is adjacent to 59th Street Terrace and the property should not have been assessed in excess of the square footage one hundred fifty feet south of said line. It further concluded the action of the governing body in spreading the assessment on the basis of the square footage of the entire tract was arbitrary, unreasonable and resulted in the assessment being void.
The appellant-board specifies various errors which basically depend upon a construction of the above statute. The facts are not in dispute. Lateral sewer lines were installed in the right-of-way of 59th Street Terrace and in the twenty foot grass alley-way. These two separate laterals are available to serve the property on both the north and south.
The appellant-board argues the front property lines were properly established by it on both 59th Street Terrace and on the twenty foot grass alley-way. By measuring 150 feet in from these two front property lines the entire 245 foot depth of the property is encompassed. Therefore, the assessment based on the square footage of the entire tract was proper.
Before examining this contention we wish to set forth the rule of law which governs the courts when they review a discretionary action taken by an administrative body. In Boehm v. Board of County Commissioners, 194 Kan. 662, 400 P. 2d 739, it is stated as follows:
“Where there is no constitutional impediment to the action taken or lack of legislative authority, a court can review the discretionary action of a public administrative body only for the purpose of determining whether the action taken is fraudulent or so arbitrary, capricious or unreasonable as to amount to fraud.” (Syl. 1.)
(See also Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828.)
Appellants’ contention depends upon a construction of the statute. In construing a statute words and phrases should be construed according to the context and the approved usage of the language. (K. S. A. 77-201, Second.) Words in common use are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. (Roda v. Williams, 195 Kan. 507, 407 P. 2d 471.)
In arriving at the meaning of the present statute and in applying such meaning to the facts of this case the term "front property line” appears to be the key. That term ordinarily applies to lots, blocks and tracts of land upon which there are buildings and to vacant tracts which are suitable in area and location for urban development and construction of improvements. Various factors and physical characteristics may influence the location of the front property line or lines of a particular lot or tract. 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.)
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.
In the present case the governing body arbitrarily determined plaintiffs’ tract had two front property lines because right-of-ways existed on two sides of the property. The physical facts and characteristics which generally determine the location of a front property line or lines were disregarded by it. Plaintiffs’ property was not accessible on the south. There were no buildings on the south half of this tract and the zoning ordinances of the city, which required every street to be a minimum of fifty feet wide, made it improbable that buildings would occupy the south half of the tract. Had the governing body gone upon the land they would have found the property, as improved and used, faced 59th Street Terrace and its front property line was limited by the physical characteristics of the tracts to the north boundary line of the property.
Appellants next argue that the assessment was proper under the proviso contained in K. S. A. 19-2793 which authorizes lands previously exempt under the 150 foot limitation to be assessed when they are served later by lateral sewers. They contend the south portion of plaintiffs’ tract is served by the lateral sewer line located in the twenty foot grass alley-way.
The appellants base their argument upon Johnson County Commrs v. Robb, 161 Kan. 683, 171 P. 2d 784, wherein it is said benefits from installation of a sewer system arise not only from the use but from availability for use and an assessment against vacant land is not invalid prior to the time the sewer is actually used. The property is more valuable because the improvement is made and the cost of the improvement may legally be assessed against unimproved land.
The assessment in the Robb case was made under a different statute. K. S. A. 19-2793 as amended provides an entirely different method of assessment based upon front property lines and exempting areas beyond 150 feet from these lines. The Robb case is not controlling or persuasive here.
The first part of the present statute exempts certain areas from assessment. The proviso authorizes an assessment on these exempt areas when they “shall thereafter be served by said lateral sewers.” This cannot be intended to mean when lateral sewers are available for service. Such a construction would negate the provision for exempt areas which result from assessment to a depth of 150 feet from the front property line.
In construing a statute the legislative intention is determined from a. general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end a court should reconcile the different provisions so as to make them consistent and practicable. (Iola B. & L. Ass’n v. Allen County Commrs, 152 Kan. 365, 103 P. 2d 788; In re Estate of Diebolt, 187 Kan. 2, 14, 353 P. 2d 803.)
The statute is not ambiguous. The first part of the act exempts a certain portion of a tract from the orignal assessment. When such exempted area shall thereafter be served by connecting the lateral sewers to improvements thereon an assessment is then to be made against the area which previously escaped assessment because it lay more than 150 feet from any front property line. The term “served” as used in the proviso conotes service to improvements through a connection with the lateral sewers.
The historical background and changes made in a statute are to be considered by a court in determining legislative intent for the purpose of statutory construction, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect is intended. (Curless v. Board of County Commissioners, 197 Kan. 580, 419 P. 2d 876.)
The history of this legislation shows that the original enactment (L. 1953, Ch. 162, Sec. 7) required the cost of lateral sewer improvements to be spread equally per square foot over all land within the district. Thereafter the law was amended to spread the cost equally per square foot over the land to a depth of 150 feet measured from the front property lines. (L. 1965, Ch. 170, Sec. 2.)
It is apparent the change in this statute was intended by the legislature to alleviate the burdens imposed upon those persons owning exceptionally deep or unusually large tracts with limited access. In determining the front property line or lines the governing body should act reasonably and in keeping with the intent of the legislature.
Under the facts and circumstances of this case the governing body acted arbitrarily, capriciously and unreasonably in ignoring the provisions of the statute and in computing the assessment on the basis of the total square feet in the entire tract. The action of the governing body was such as to amount to fraud upon the plaintiffs if the assessment were permitted to stand. The assessment was properly set aside as void.
The judgment of the district cotut is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant was convicted by a jury of the crime of grand larceny (K. S. A. 21-533) and given a lengthy sentence in the Kansas State Penitentiary pursuant to the Kansas Habitual Criminal Act. (K. S. A. 21-107a.) He has appealed, and asserts that during the trial of his case the district court committed error prejudicial to his substantial rights.
The appellant is hereafter referred to as the defendant.
Evidence introduced by the state showed that on the evening of July 27, 1967, the defendant, Donald Eugene Cippola, was in the Mission Shopping Center in Johnson County, Kansas, at a time when Jerry Pike of the Mission police department was cruising slowly in his patrol car through the parking lot of the shopping center. Pike noticed a dark blue Thunderbird automobile and a young man loitering about the car. He stopped to watch the activities about the Thunderbird. He saw the defendant come from the Parkview Drug Store with a suit coat draped over his right shoulder, and proceed to the Thunderbird, open the trunk, bend down and drop some items into it and then close the trunk. The defendant spoke briefly to the young man loitering about the car and proceeded back into the drug store. At that time Pike confronted the young man loitering near the car and after a few words between the two, the young man ran out of the parking lot, up the hill, and onto the highway. At about the same time, the defendant came back out of the drug store with the suit coat still draped over his right shoulder, and started toward the Thunderbird. Pike called to the defendant, and he immediately turned and started walking away from the Thunderbird. Pike testified he got out of the patrol car and tried to catch up to where the defendant was when the phonograph records started hitting the pavement. He did not see them drop but heard them and, because of other cars, was a few seconds in getting around the cars to where he had the defendant in full view and observed the Parkview 88 price tagged records lying on the parldng lot within three or four feet of the defendant. No one else was in the immediate vicinity of the defendant when Pike saw him and no other persons were observed in the area where the records were lying on the pavement. Parkview 88 is the number of the drug store owned by Parkview G. E. M., Inc.
Pike took the defendant into custody, summoned help by radio, and several members of the Mission police department arrived shortly. Pike directed the officers to gather up the records and take them and the defendant to the Mission police department. Upon Pike’s arrival at the police department he marked the records and shortly thereafter took the defendant and the records to the Johnson County jail where the defendant was turned over to Detective John Waner of the Johnson County sheriff’s office. Waner marked the record albums and put them in the property room of the sheriffs office.
Prior to conversing with the defendant, Waner fully advised him of his constitutional rights. In a conversation with Waner, the defendant asked him if the case could be “fixed,” the charges reduced, or the record albums destroyed. At no time during that interview or any other interview did the defendant offer or was he able to produce a sales slip showing he had purchased the records, or show he was authorized to remove the records from the Parkview 88 Drug Store.
Meanwhile Pike impounded the Thunderbird for the purpose of obtaining a search warrant to search the trunk of the car. A search warrant was obtained and executed the following morning and similarly price-tagged record albums from the Parkview 88 Drug Store were found in the trunk.
The evidence showed the normal procedure for the sale of records at the drug store was that the top half of the price tag of each record album was removed and placed in the cash register and, if there were a large quantity sale of record albums, a box and shopping cart would be called for and all of the records packed in the box and help given to deliver them to the purchasers automobile. There was no evidence of any such procedure being followed on the evening of July 27, 1967. The ignition key to the Thunderbird was found on the defendant’s person and every record album introduced into evidence contained the same full price tag, that is, the top half of the price tag had not been removed as a cash purchase pursuant to the Parkview 88 rules and procedure. The evidence further disclosed that the defendant had four prior similar convictions in the state of Missouri. No witnesses were called by the defendant, nor did he take the witness stand to testify in his own behalf.
The defendant first contends the district court erred in overruling his motion for a directed verdict and in approving the jury’s verdict of guilty over his objection that proof of the corpus delicti was not established beyond a reasonable doubt. The point is not well taken. The corpus delicti may be proved by the direct testimony of persons who saw the act, or by indirect and circumstantial evidence, or partly by one and partly by the other. No exclusive mode of proof of the corpus delicti is prescribed by law. Circumstantial evidence is sufficient, if strong and cogent, if it excludes every hypothesis other than guilt and leaves no room for reasonable doubt. (State v. Doyle, 201 Kan. 469, 478, 441 P. 2d 846.)
We are not predisposed to restate the evidence, but it may be said all the evidence pointed to the fact that the record albums in question were the property of Parkview 88; that the defendant had not been authorized to remove them from the store without paying for them; that the value of the record albums was more than $50; that the defendant came from the drug store on a hot summer night with his suit coat draped over his shoulder in such a way that it would cover any record albums hid under his arm; that he returned to the store with the coat still draped over his shoulder rather than leaving it in the Thunderbird, and again came out of the store, and when approached by Pike, he walked away from the Thunderbird and in a short distance dropped the records where they were found within three or four feet from where he was standing. Considering all the facts and circumstances, it may he said the district court did not err in overruling the defendant’s motion for a directed verdict and in approving the jury’s verdict of guilty. When considering the sufficiency of circumstantial evidence to sustain a criminal conviction, the function of this court is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. In State v. Satterfield, 202 Kan. 395, 449 P. 2d 566, it was held:
“Before a verdict of guilty which has been approved by the trial court may be set aside because of insufficiency of evidence, it must clearly be made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the lower court.” (Syl. ¶ 3.)
See, also, State v. Satterfield, 202 Kan. 391, 449 P. 2d 564.
It is next contended the district court erred in overruling the defendant’s motion to declare a mistrial, based upon his claim that the assistant county attorney made certain inflammatory statements in his closing argument to the jury. In the defendant’s closing argument to the jury, one of his counsel stated, “. . . and I submit to you that Mr. Wheeler, when he introduced Exhibits No. 10 and 11 (authenticated copies of prior judgments of conviction), was trying to incite you just like the detectives were incited, that you would say this is the man from the Mafia, he is stealing 36 long-playing records. He is a big-time gambler, and we are going to put him away. . . .”
In his closing argument to the jury the assistant county attorney responded, “I don’t know whether this man is a member of the Mafia, and I don’t intend to say one way or another. That is invading your province to determine that. . . .” Counsel for the defense did not object to the prosecutor’s statement regarding the Mafia, but objected a few moments later to the prosecutor’s remarks regarding the effect of the exhibits showing the defendant’s prior convictions. Upon objection, the district court stated: “Members of the jury, you are admonished to disregard the last remarks of counsel for the state and are directed to give the same no consideration.” The court further admonished the jury that statements of counsel are not evidence and are not to be considered by it as evidence and directed counsel for the state to proceed with his argument. There is no error here. In State v. Magee, 201 Kan. 566, 441 P. 2d 863, it was said:
“The law in this respect is quite clear. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defendant’s attorney. (Montgomery v. Commonwealth, [Ky.] 346 S. W. 2d 479; Pace v. State, 171 Tex. Cr. App. 219, 346 S. W. 2d 339; Patterson v. State, 170 Tex. Cr. App. 84, 416 S. W. 2d 816.)” (l. c. 570.)
It is next contended the district court erred in overruling the defendant’s motion to quash the information upon the defendant’s claim that it had no jurisdiction to try him because the evidence introduced by the state at the preliminary examination did not establish that a crime had been committed. During oral argument on the motion, counsel submitted to the district court the transcript of the preliminary examination and contended certain statements made by the state’s witnesses showed no crime was committed. It should be stated that following the preliminary examination, the examining magistrate found that a crime had been committed and there was probable cause to believe the defendant guilty of its commission.
The defendant was arraigned on October 11, 1967, and entered a plea of not guilty. His motion for continuance over the term was overruled and the case was set for trial to commence October 23. On the defendant’s application the court granted a ten day continuance of the trial, until November 2, 1967, at which time counsel filed the motion to quash the information. In State v. McCarther, 196 Kan. 665, 414 P. 2d 59, it was held:
“A motion to quash or dismiss an information does not raise an issue of the lack or the sufficiency of a preliminary examination since such a motion reaches only some defect apparent on the face of the information.” (Syl. f 2.)
In State v. Cook, 193 Kan. 541, 393 P. 2d 1017, it was held that extrinsic evidence, such as was offered by counsel for the defendant, cannot be resorted to for the purpose of establishing the insufficiency of an information. Moreover, the defendant was required to raise the question of the sufficiency of the preliminary examination prior to arraignment by filing a plea in abatement, but no plea in abatement was filed. (State v. McCarther, supra.) See, also, State v. Schroeder, 201 Kan. 811, 443 P. 2d 284, and State v. Jones, 202 Kan. 31, 39, 446 P. 2d 851.
The defendant asserts the district court erred in admitting into evidence state’s Exhibits 11 and 12 without further evidence to show identity of defendant with the person named as the defendant in each exhibit. Exhibit 11 was a duly authenticated copy of the con victions of Donald Eugene Cipolla of the crimes of robbery in the first degree and grand larceny of an automobile on January 6, 1954, in cases Nos. 850 and 851, respectively, in the Circuit Court of Montgomery County, Missouri. Exhibit 12 was the duly authenticated copy of three separate convictions of Donald Cipolla of the crimes of stealing over $50 and stealing under $50 on June 18, 1962, and March 7, 1966, respectively, in the Circuit Court of Jackson County, Missouri, cases Nos. C-31878, C-31816, and C-34666. The authenticated copies of such convictions showed that Donald Cipolla upon advice of his attorney entered his plea of guilty to each of the crimes charged against him. We think the district court did not err in admitting the exhibits.
The minor difference in the spelling of the last or surname of the defendant as charged in the information in the instant case as “Donald Eugene Cippola” and the name of the defendant which appears on Exhibits 11 and 12 as Donald Eugene Cipolla and Donald Cipolla is an immaterial variance, the first and middle names being identical and the last name idem sonans so proof beyond such identity of names did not render the exhibits inadmissible. Generally speaking, the lack of identity of Christian name or initials, in the absence of other proof, raises no presumption of identity of a person. (State, ex rel., v. Dunn, 118 Kan. 184, 190, 235 Pac. 132, and cases cited.) However, a finding of identity is not precluded by a minor difference in the spelling of the surname or the family name, if the names are idem sonans, or sound alike when pronounced. (Black’s Law Dictionary, Fourth Ed., p. 880; 11 A. L. R. 2d 886, § 8.) The doctrine of idem sonans has been applied in Kansas criminal law with the effect that minor differences in a surname are held to be immaterial variances. See State v. Watson, 30 Kan. 281, 1 Pac. 770; State v. Gordon, 56 Kan. 64, 42 Pac. 346; State v. Johnson, 70 Kan. 861, 79 Pac. 732, and State v. Tillotson, 85 Kan. 577, 585, 117 Pac. 1030, Anno. Cases 13A 463. Under the circumstances which attend, we are of the opinion the district court did not err in admitting the exhibits, and we hold that proof beyond the identity of the name therein was not a necessary part of the state’s foundation for their admission in evidence, there being an absence of rebuttal evidence or a denial of identity. (State v. Appleton, 70 Kan. 217, 78 Pac. 445.) However, we enter our caveat that better practice would dictate that where the question of the identity of the defendant on trial is raised with respect to his prior convictions of similar offenses (K. S. A. 60-455), the state should offer evidence showing that the defendant is the same person who was previously convicted.
The defendant next contends the district court erred in overruling his motion to require the state to furnish the addresses and telephone numbers of the witnesses endorsed on the information. The point is not well taken. K. S. A. 62-802 provides in effect that the county attorney shall endorse on the information the names of the witnesses known to him at the time the same is filed, and he shall also endorse thereon the names of such other witnesses as may after-wards become known to him, as the court may direct. The statute is designed to protect the defendant against being taken by surprise at the trial (State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63), but it makes no requirement that the county attorney shall furnish the addresses or telephone numbers of the witnesses endorsed on the information, and we know of no such requirement.
It is claimed the district court erred in permitting the state to amend the information after the trial had begun so as to show the victims name as being “Parkview G. E. M., Inc.” rather than “Parkview Drugs, Inc.” No error was committed. Obviously, the amendment was of form (K. S. A. 62-808) rather than of substance, and clearly did not prejudicially affect the substantial rights of the defendant upon the merits. (K. S. A. 62-1011.) The information as amended continued to allege the property was stolen from the Parkview Drug Store at the same address — 4900 Johnson Drive, Mission, Kansas.
K. S. A. 62-1718 provides that on appellate review of criminal prosecutions this court must render judgment without regard to technical errors or irregularities which do not affect the substantial rights of the parties. (State v. Clift, 202 Kan. 512, 450 P. 2d 1006.) We have thoroughly reviewed the record and all contentions advanced by the defendant have been carefully studied. It is sufficient to say the record does not affirmatively disclose that the substantial rights of the defendant were prejudicially affected by any of the rulings of the district court, and, further, that the defendant had a fair and impartial trial of the charges alleged against him. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
The matter herein arises out of an appeal from the award of court-appointed appraisers in a condemnation action filed by the Urban Renewal Agency of Wichita, Kansas.
The question before the court is whether evidence showing an increase in real estate values resulting from private improvement on property in the vicinity of the condemned property should be excluded in arriving at the fair market value of the condemned property.
The facts have been stipulated by the parties.
The Urban Renewal Agency of the Wichita, Kansas, Metropolitan Area (appellant herein) prepared and designated what is referred to as Project R-19. The boundaries of the project encompassed a large area in downtown Wichita, Kansas. The two properties here in question were included within the project area and are identified as 3A (hereinafter referred to as the Garvey property) and 5J (hereinafter referred to as the Spines property). These properties face each other fronting on Douglas Avenue in Wichita, Kansas.
The Urban Renewal Agency had the authority to acquire by eminent domain both parcels of land here in question within the project area on the date of the taking of the Spines property. That authority to acquire the Garvey land has never been exercised by the Urban Renewal Agency. After the designation of the boundaries of Project R-19, but prior to the date of the taking of the Spines property by condemnation, the Garveys commenced construction of a multimillion dollar office building on their property by a private developer without formal approval or financial support of the Urban Renewal Agency. Thereafter, the Urban Renewal Agency condemned the Spines property to become part of the civic center public project.
The parties stipulated that if the market value of the Spines property on the date of the taking were to be determined by considering the Garvey property with the construction on it, the value of the Spines property would be $78,000. They further stipulated that if the market value of the Spines property were to be determiried without taking into consideration the construction on the Garvey property on the date of the taking, the market value of the Spines property would be $70,000.
The sole question presented to the trial court was the fair market value of the Spines property on the date it was taken by the Urban Renewal Agency.
The Urban Renewal Agency, appellant herein, takes the position that in determining the fair market value of the Spines property, the court should not consider the Garvey property as improved even though it was admitted that the Urban Renewal Agency was not in any way responsible for the Garvey improvement and had never condemned the Garvey property.
The only support the Urban Renewal Agency has for its position is that the Garvey property was initially placed within the described boundaries of the urban renewal area defined as Project R-19.
In eminent domain proceedings the general principle is that the landowner has a constitutional right to be compensated for the property taken from him at its fair and reasonable market value for the best and most advantageous use to which the property may be put as of the date of the taking. (United States v. Miller, 317 U. S. 369, 87 L. Ed. 336, 63 S. Ct. 276 [1943]; and Love v. Common School District, 192 Kan. 780, 391 P. 2d 152.)
An exception to this rule is that the condemning authority is not obligated to pay for an enhancement in the fair market value of the property which occurs as a result of the public improvement made before the date of the taking. That is, the landowner is not entitled to the additional value resulting as a part of the comprehensive scheme of improvement, which requires the taking of his and other property. This rule has been stated in different language by the various authorities cited and quoted in Harris v. Wyandotte County Comm'rs, 151 Kan. 946, 101 P. 2d 898 (affirmed in Steck v. City of Wichita, 179 Kan. 305, 295 P. 2d 1068).
A well-recognized writer on eminent domain has stated the exception to the general rule as follows:
“If it is known from the very beginning exactly where the improvement will be located . . . the property that will be required for its site will not participate in the rise or fall in values, for, since such property is bound to be taken if the improvement is constructed, it can never by any possibility either suffer from or enjoy the effects of the maintenance of the public work in its neighborhood; and consequently it is well settled that in such case in valuing the land the effect of the proposed improvement upon the neighborhood must be ignored.” (4 Nichols on Eminent Domain [3rd Ed.] § 12.3151 [1], pp. 205,206.)
See, also, 1 Orgel on Valuation Under Eminent Domain (2nd Ed.) ch. vm, pp. 424-450.
In the Harris case, supra, the Wyandotte County Commissioners had platted a proposed recreational park and public lake. The plaintiff’s land was included within this plat. Subsequently, other lands also within the plat were condemned, upon which a lake was constructed prior to the taking of the plaintiff’s land. When the plaintiff’s land was finally condemned, he contended his property was now lakeside property and could not be considered in its former use. On appeal to this court it was held the plaintiff was not entitled to the enhancement in value as lakeside property, because the enhanced value was due solely to the particular public project for which the property was being condemned.
The situation in the instant case is entirely different. The enhancement in value in the present case was due to the construction of a building on the Garvey property adjacent to the Spines property, wherein the improvement upon the Garvey property was undertaken by a private developer without the aid of urban renewal. At no time was the Garvey property ever condemned or taken as a part of the urban renewal development. In Harris the enhancement in value was caused by the lake — a part of the public improvement for which the plaintiff’s land was ultimately condemned. In Harris the property which caused the enhancement in value of the plaintiff’s tract had been previously condemned, while here the Urban Renewal Agency has never condemned the Garvey property. Furthermore, the lake in the Harris case was constructed by the condemning authority, Wyandotte County. There the county was solely responsible for the improvement that had enhanced the value of the plaintiff’s property. In the present case the Garvey property was privately owned and the building constructed thereon which increased the value of the Spines property is the sole product of private enterprise.
Reduced to its simplest form, the appellant contends land values are frozen within the project area designated by the Urban Renewal Agency once the project area is designated and defined. This we cannot accept. The effect of the appellant’s position would permit an Urban Renewal Agency to freeze the value of property to be condemned, perhaps for years, by merely drawing the preliminary boundaries of a project to include all adjacent property which might be developed by private enterprise, without any actual intention or plan to devote it to public use.
In Haley v. State, 406 S. W. 2d 477 (Tex. Civ. App. 1966) it was held that the landowners were entitled to be paid the entire market value of their land on the date of taking, including the enhancement in value resulting from abandonment of a railroad right-of-way, where abandonment took place some three years before condemnation of land for highway purposes, and removal of the railroad right-of-way did not result from the proposed highway project.
The Supreme Court of Mississippi in Paulk v. Housing Authority of City of Tupelo, 204 So. 2d 153 (Miss. 1967) held the value of land taken by eminent domain is to be determined as of the date of filing eminent domain proceedings; and that a landowner was entitled to the fair market value of his property on the date condemnation proceedings were filed, including any enhancement in value resulting from resolutions of the municipal housing authority designating the renewal project area. There the two lots in question were within the area designated on the 5th day of August, 1958, by the housing authority pursuant to its power granted by the state of Mississippi, and on the 20th day of June, 1961, the housing authority approved an urban renewal plan for acquiring and redeveloping these areas for light industrial and commercial uses. Thereafter, in March, 1963, it filed condemnation proceedings against the appellant’s two lots resulting in a judgment which was later declared void. By the time the housing authority initiated new condemnation proceedings on the 20th day of April, 1965, the appellant had removed all improvements on his land and it lay vacant. When the condemnation proceedings were resumed, judgment was eventually entered awarding the appellant $45,000 compensation for his two lots. From this judgment both parties appealed to the Circuit Court where, after a trial de novo, judgment was rendered for the landowner in the sum of $12,000. On appeal the landowner assigned as error that the lower court erroneously excluded from evidence the urban renewal plans for the area, and erroneously instructed on behalf of the housing authority concerning the fair market value of the land. The Supreme Court of Mississippi reversed, holding that the enhancement in value of the land prior to the date of the talcing may be shown and claimed by the landowner, but that the increased value of the land after the taking may be shown by the state agency to prove the value of the land at the date of the filing of the eminent domain proceeding, without regard to the injuries or benefits shared by the general public resulting from the use to which the land is to be put.
Thereupon the court concluded by saying:
“Furthermore, the fair market value as between a willing purchaser and a willing seller in an open market is die standard used by this Court and others in arriving at the value of land taken by condemnation. We cannot conceive of a prospective purchaser of commercial property, in an area being transformed by urban renewal, not inquiring into the zoning restrictions on the property, the plans for streets and alleyways, the lot frontage on such streets, etc., so that he might determine its suitability for his purpose. Since it is our opinion that the urban renewal plans are an essential factor in determining value under the willing-purchaser rule, we must conclude that the landowner was prejudiced by the court’s refusal to allow those plans in evidence, and this constitutes reversible error.” (p. 155.)
Whether this court would follow the Supreme Court of Mississippi on the facts confronting it in the Paulk case is a question we leave open. A decision on the facts presently confronting this court need not encompass a determination of the issue presented in Paulk.
In Paulk the long delay between the original action of the public housing authority in defining the project area and the ultimate condemnation of the landowners property inferentially suggests the many problems confronting a landowner whose property happens to be located in an urban renewal project area. These problems include the maintenance, improvement, use, occupancy and sale of the property. In the instant case the parties have not favored us with the dates of activity concerning Urban Renewal Project R-19 in the city of Wichita. (But see, Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, decided in July, 1965, wherein it is disclosed the board of city commissioners of Wichita, Kansas, first took formal action regarding Uurban Renewal Project R-19 on the 6th day of March, 1962.)
Upon the stipulated facts here confronting the court, we hold the owners of the Spines property are entitled to recover the enhanced value of their property resulting from the improvement of the Garvey property by a private developer without formal approval or financial support of the Urban Renewal Agency.
The trial court determined it was proper to take into consideration the improvement of the Garvey property in arriving at the market value of the Spines property, and in accordance with the stipulation found the fair market value of the Spines property on the date of the taking to be $78,000, for which amount it entered judgment.
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The opinion of the court was delivered by
Hatcher, C.:
This controversy stems from a dispute as to the age of an insured at the time of his acceptance under a group credit life insurance policy.
On October 30, 1961, E. G. Koch, the decedent, made an installment purchase of a J. I. Case Tractor and gave an installment note to the seller, a local implement dealer in Lyons, Kansas. In connection with the installment purchase contract, Koch made application to the J. I. Case Company for insurance under the terms and conditions of a group credit policy issued by the defendant, The Prudential Insurance Company of America, and stating in the application that he was then sixty-five years of age.
The installment contract and note were assigned to the J. I. Case Credit Corporation. On November 7, 1961, Koch was so advised. He was also advised that the insurance had been issued as he had requested and a statement of insurance from the defendant insurance company was mailed to him. The statement of insurance stated:
“The insurance protection described in this statement of insurance does not apply to any indebtedness which originates on or after the debtors attainment of age sixty-six.”
Koch died intestate on September 10, 1964, at which time he owed a balance of $2,949.29 on the installment note. Koch’s representative forwarded a certified copy of his death certificate as proof of death under the insurance policy. Upon receipt of the death certificate by the defendant insurance company it denied liability on the grounds the death certificate showed Koch was not eligible under the terms of the group credit life policy. The certificate gave the date of his birth as April 12, 1895.
The J. I. Case Credit Corporation filed a claim in the probate court for the balance due on the installment note. The claim was allowed and paid. An action was then commenced against the insurer for the amount due on the note at the date of decedent’s death by Rosa C. Koch, widow of the decedent and administratrix of his estate. After the issues were framed the parties stipulated at a pretrial conference that—
“The sole issue of fact to be determined in the above entitled cause is Mr. E. G. Koch’s date of birth.”
Further simplified — was his date of birth April 12, 1895, or April 12,1896?
The trial court found that E. G. Koch was born April 12, 1896, and the group credit life insurance was in effect at the time of his death. Judgment was rendered against the defendant for the balance due on the installment note.
The defendant has appealed.
The appellant first contends that the trial court erred in not sustaining its motion for summary judgment.
At the time the motion was presented to the trial court there were various documents which gave conflicting dates as to the birth of E. G. Koch. The trial court properly found that there was a justifiable issue of fact as to whether or not Koch had attained the age of 66 on October 30, 1961, the date he signed the installment purchase contract.
Appellant suggests that admissions of plaintiff, Rosa C. Koch, administratrix of the estate of E. G. Koch, deceased, were sufficient as a matter of law to sustain appellant’s motion for summary judgment. Rosa Koch subsequently resigned as administratrix because of failing health, she died before the case came to trial, but while acting for the estate in her representative capacity she did on request for admissions state in part as follows:
“Plaintiff states that she believes Elmer G. Koch was sixty-six (66) years of age at the time he purchased the tractor and attachments alleged in the plaintiff’s petition from the Burgess Implement Company of Lyons, Kansas, but that she likewise knows that said Elmer G. Koch believed himself to be sixty-five (65) years of age at the time said purchase was made and that the facts concerning age are as readily available to the defendant as they are to the plaintiff and that the plaintiff does not actually know the age of the decedent, Elmer G. Koch.”
The appellant refers to “an equivocating admission,” not a denial, and calls our attention to federal decisions, construing the federal rule similar to our K. S. A. 60-236 providing for admissions, holding that “straddling statements” and “evasive answers” are, in law, admissions under the rule. We do not find the plaintiff’s admission to be subject to such classifications.
The then plaintiff very frankly stated that she believed that her husband was sixty-six (66) when he purchased the tractor, but that he believed himself to be sixty-five (65) and that she does not actually know his age. It appears to us that the admission was unusually frank for an admission by a party.
It should also be noted that subsequent to the request for admissions the appellees answered interrogatories which brought forth written documents establishing the age of Koch at the time he purchased the tractor as sixty-five (65) years.
We conclude that the admission of the then plaintiff fell well within that part of K. S. A. 60-236 which reads:
“. . . A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part or qualify a matter of which admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.” (Emphasis supplied.)
The appellant next contends that the trial court’s findings are contrary to the overwhelming weight of the evidence.
Before considering the above question there are two preliminary matters that require attention. The appellant suggests that since the evidence before the trial court consisted entirely of pleadings, admissions, exhibits and a stipulation this court should decide what the facts admitted in evidence establish and in effect try the case de novo.
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. . . .”
We will heed the admonition.
This brings us to the second preliminary issue. Both parties contend that the burden of proof is on the other.
Although this court has not passed directly on the question, it appears to be the very general rule that where the insurer, challenges the coverage because of a misstatement by the insured of his age, the insurer has the burden of proving the falsity. (160 A. L. R. 311.)
In Couch on Insurance, Sec. 2247a we find the following statement:
“In the absence of proof to the contrary, a presumption exists that the applicant has truly stated his age, wherefore the insurer, relying on a forfeiture for misstatement of age, has the burden of proving the falsity. So it has been said that the burden of proving a misstatement by insured of his age, or that he was over the insurable age limit, rests with the insurer. ... Of course, a misstatement as to age cannot be established by insufficient evidence. In fact, to effect a forfeiture because of a misstatement of age, the evidence must be clear and of a positive character. Thus, although the presumption that the applicant has truly stated his age may be overcome by proper evidence, it is not overcome by conflicting statements made in the proofs of death furnished by one of the beneficiaries under the policy. . . .” (p. 7342. For later case see 1945 supplement.)
We had a situation quite similar to the one now before us in James v. Metropolitan Life Ins. Co., 158 Kan. 26, 145 P. 2d 144. In the James case the plaintiff, insured’s representative, brought suit against the defendant insurance company on an employee’s group life insurance policy. The defense was based on the contention that the insured was not covered by the group policy because he had terminated his employment. We held that the trial court did not err in placing the burden of proof upon the defendant.
We must conclude that the contention that one is not in an assured group because of age presents an affirmative defense and the burden of proof is upon the insurer.
The trial court in a memorandum decision summed up the evidence as follows:
“Because of its age and because it was signed by E. G. Koch, the marriage affidavit given in 1921 is the most probative evidence. It suggests an age of 66.
“Next most probative is the Bankers Life application of 1923 signed by E. G. Koch. It suggests an age of 65.
“Next most probative is the Security Life & Accident application of 1941 signed by E. G. Koch. It suggests an age of 65.
“Next most probative are the records of the Motor Vehicle Department starting in 1956 to whom E. G. Koch gave data that suggest an age of 65.
“Next most probative are the Army Discharge of 1919 and the Birth Certificate of Calvin Koch of 1936, both of which suggest an age of 66, but as to neither of which may it be determined that E. G. Koch then participated in the establishment of his age.
“Taking the evidence as a whole and assuming that E. G. Koch himself probably more definitely knew his age than anyone else who made statements which were the foundation for parts of the evidence in this case. . . .”
We have no difficulty in concluding that the defendant did not sustain the burden of proving its affirmative defense.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This is a common-law action to recover damages for personal injuries suffered by the plaintiff, Charles Hacker, when he was struck by a scoop, or shovel, attached to a caterpillar tractor being operated by an employee of the defendant, Brookover Feed Yard, Inc. The case was tried to a jury which returned a verdict in favor of the plaintiff. Judgment was entered on the verdict and this appeal followed. For convenience we will refer to the parties either as plaintiff and defendant, or by name, as Hacker and Brook-over.
In defending against this action, Brookover relied mainly on two theories: (1) That the plaintiff’s exclusive remedy is under the Workmen’s Compensation Act; and (2) that plaintiff is barred under the fellow-servant doctrine. These are the sole points presented on appeal, and we will discuss them in order. Before doing so, however, a recitation of the relevant facts is needed.
Brookover is engaged in feeding and finishing cattle for market. Although it feeds some cattle of its own, most of its business is feeding cattle for others under contract; it is a “contract feeder.” The feeding time required from start to finish is usually 135 days. Brookover is paid five cents per head per day, plus cost of the feed and a markup for processing, rolling, mixing and getting the feed to the bunks.
Outside of molasses, which is trucked in and used as a supplement, most of the feed, including silage, alfalfa hay and grain is raised in the adjacent area. The defendant, itself, raises a small part of the feed and buys the remainder either under contract or on a day to day basis at market price.
All silage fed by Brookover, outside its own, is supplied by farmers within the general area, under written contracts with Brookover. These will be described in some detail later on. For the moment all we need to say is that the plaintiff, Hacker, at the time of his injury, was employed by one Elmer Richmeier, a local farmer, with whom Brookover had contracted to buy 100 acres of silage in 1964. Hackers job, so far as this action is concerned, was driving a truck used in delivering silage from Richmeier to pit silos located on defendant’s feed lot. It was while he was so employed that Hacker was injured.
The circumstances of the accident were these: On the morning of September 19, 1964, plaintiff trucked two or three loads of silage to one of Brookover’s silo pits. His testimony was that on reaching the feed yard he would weigh his load on the scales and be directed to the pit, or silo, which was then being filled. On arriving at the pit, he would wait his turn and then be directed by Randy Seay, a Brookover employee, to back into the pit where he would dump his load by raising the truck bed, at which time Randy would unfasten the tail gate.
During the morning, plaintiff became mired in the pit each time he dumped his load and had to be helped by a tractor operated by Joe Nichols, who worked for Brookover. Joe’s job was to distribute and pack the silage, and assist trucks when they got stuck.
On the first occasion, a chain was hooked to the truck’s front bumper, nearly pulling it off. After that, Hacker said to put the hook around the spring to save the bumper. This resulted in the chain getting tangled and a lot of time was wasted.
When the truck got stuck that afternoon, Hacker was asked where to put the hook. He got out of the truck and lay on the ground partly under the truck to point out where the hook should be attached. At this juncture, the tractor started forward and a scoop attached to the front end struck the plaintiff.
We turn to the first and principal point raised on appeal, namely, that Hacker’s remedy is under the Compensation Act. In the trial court, this point was determined adversely to defendant as a matter of law. The respective positions of the litigants are these: Brookover contends that the delivery of silage to its feed yard was an integral part of its business which it had contracted to others, including Richmeier, making Hacker, in effect, a statutory employee under K. S. A. 44-503. Thus, it is argued, Hacker’s exclusive remedy for the injury sustained while engaged in such work is under the Workmen’s Compensation Act.
On the other hand, Hacker maintains that the relationship between his employer, Richmeier, and the defendant feed yard was that of vendor and vendee; that Brookover’s business was feeding cattle, not raising feed; and that in delivering feed to Brookover as Richmeier’s employee he was not performing an integral part of Brookover s trade or business.
The statute on which Brookover relies, K. S. A. 44-503, reads in relevant part:
“(a) 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 that workman had been immediately employed by him; . .
This statute and its application to various factual situations has been not only the cause of considerable litigation throughout the years but the subject of frequent opinions by this court, many of them being cited in Brookover’s brief. Neither time nor space will permit a detailed analysis or comparison of our past decisions, nor would the luster of our reports be enhanced by so doing.
Without exception we have held that where the circumstances bring a case within the purview of K. S. A. 44-503, the injured workman becomes what is now known as a “statutory employee” whose sole and exclusive remedy is under the Workmen’s Compensation Act. (Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; Hanna v. CRA Inc., 196 Kan. 156, 409 P. 2d 786.) The plaintiff concedes this to be true but he maintains the statute does not fit the facts of this case and hence is inapplicable.
Speaking generally, as we have indicated in past decisions, the key question to be answered in deciding whether 44-503 has application, is whether the work undertaken by the contractee is a part of the regular trade or business of the contractor or, in other words, whose work is being done? (Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239; Coble v. Williams, 177 Kan. 743, 282 P. 2d 425; Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701.) This view coincides with the general rule set out in Larson’s Workmen’s Compensation Law, 1966, Vol. 1A, § 49.12, p. 859:
“Practically all cases of general interest interpreting this type of statute are addressed to one question: When is the subcontracted work part of the regular business of the statutory employer? . .
In Hanna v. CRA Inc., supra, we endeavored to delineate the tests for gauging whether the work contracted comes within the contractors principal business. We there 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 die 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 die 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 employee’s sole remedy against the principal is under the Workmen’s Compensation Act.” (pp. 159, 160.)
We need not, at this time, delve more deeply into the application of K. S. A. 44-503 generally, inasmuch as we believe the facts disclosed by the record before us bring this case within the ambit of our decision in Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P. 2d 558, wherein we held:
“A sale and delivery of merchandise is not such a contractual relationship as is anticipated by K. S. A. 44-503 creating statutory employers and employees for die purpose of workmen’s compensation.” (Syl. ¶ 2.)
Briefly, the facts in Bendure were as follows: The plaintiff was a truck driver for Builders Steel Company, which had sold two steel I-beams to Great Lakes Pipe Line Company, subject to delivery at the latter’s plant. The beams were to be used in the installation of some plant equipment by Great Lakes, the work being done by its own employees. During the unloading of the truck, to which the plaintiff was lending a helping hand, the plaintiff was injured, through the alleged negligence of an employee of the pipe line company. He then sued Great Lakes for damages. In upholding plaintiff’s right to maintain the common-law action against Great Lakes, we said:
“We are forced to conclude that a sale and delivery of merchandise is not such a contractual relationship as is anticipated by K. S. A. 44-503. This court has not had occasion to pass on the specific question but the general rule would appear to be as stated. In 99 C. J. S., Workmen’s Compensation, § 107, p. 369, we find the following statement in connection with tire statutory relationship:
“ ‘The compensation act does not apply where the transaction between the immediate employer and the person sought to be held liable as his employer is that of purchase and sale, . . .’
“The rule stated is subject to the exception that when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a contractor within the meaning of the statute. The rale is also subject to the exception that the transaction must not be a mere device or subterfuge to avoid liability under the Workmen’s Compensation Act. . . .” (p. 702.)
The defendant attempts to distinguish this case from Bendure on two grounds: First, that there was a written contract between Richmeier and itself; and second, the contract calls for substantial services, thus bringing the case within the first exception noted in Bendure. There is no contention the transaction between Richmeier and Brookover was a subterfuge.
Before we answer these contentions, a short look at the Richmeier contract would seem in order. In the agreement, Brookover agrees to purchase 100 acres of an early maturing hybrid corn which will make good quality silage; the corn to be planted in rows of 36 inches or wider; to be harvested at approximately 65% moisture; to be field chopped fine, weighed over Brookover scales and dumped into the silo; Brookover is to pay $7 per ton delivered to the silo; and if the forage is not of good quality, Brookover has the option to turn it down or agree on a different price.
In our opinion the agreement, although in writing, was nothing more than a contract, executory in character, providing for future sale of silage (Schoonover v. Igleheart, 163 Kan. 689, 186 P. 2d 109) and the relationship created between Richmeier and Brookover was simply one of prospective vendor and purchaser. In our judgment, the delivery of a truck load of silage to the defendant’s pit silo and its acceptance by the defendant would constitute as valid a sale under their agreement, and no ¿lore, as did the transaction in Bendure.
The defendant infers, because the silage had to be produced by Richmeier and dumped into Brookover’s silo, that this case fits into the exception mentioned in Bendure, i. e., a sale accompanied by an undertaking to render substantial services in connection with the product sold. We think the inference is unjustified. In Bendure, we carefully refrained from defining “substantial services” or when, how and where the performance thereof would be required to bring a case under the exception, and we do not propose to generalize here. Unsatisfactory though the method may be, this is an area in which each case will have to be judged very largely on its own facts and attendant circumstances.
It might prove helpful, however, to mention some of the concurring factors which have been considered in reaching our decision. Richmeier is an independent farmer. The corn crop was raised entirely on land either owned by him or under his control, not under Brookover s dominion. Richmeier’s equipment was used and he employed his own labor. So far as the record is concerned, we may assume that Richmeier furnished the seed, and that title to the crop remained in Richmeier until the silage was dumped into the silo. It was Richmeier who took the risk of a crop loss; it was Brookover who could refuse the silage should it fail to measure up to requirements. The crop was not only planted and raised to maturity on Richmeier’s land, but it was harvested and cut into silage on his land as well; none of the work took place on Brook-over’s premises.
Brookover suggests that since it produced some silage of its own on land which it leased, the production of feed was part of its regular business. We think this result does not follow. The silage raised by Brookover was minimal in amount. In 1964 Brookover contracted with eight individual farmers, including Richmeier, for the silage needed in its feeding operations that year. Together, the farmers sold Brookover twenty-one thousand seven hundred and eighty-two (21,782) tons of fodder, as against three thousand three hundred forty-three (3,343) tons raised by Brookover.
It is obvious from defendant’s own evidence that Brookover’s primary business is feeding cattle, not producing ensilage, and that Brookover must depend on local purchases in meeting its feed requirements. Nor is Brookover in the business of hauling ensilage, as one of its officers pointed out. Mr. Richmeier’s production of ensilage on his own farm, from his own corn raised from his own seed, was a process preliminary to Brookover’s feeding operations, not central thereto. The delivery of the finished product to Brook-over’s silo consummated the sale provided for in the written agreement. That the contract was reduced to writing in this case, rather than being oral, as in Bendure, provides no basis for distinguishing the two cases.
Our research has uncovered no case which is identical to the present action. We find some similarity, however, in Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737, an action brought under the wrongful death statute. The decedent, a truck driver, picked up a load of soybeans for his employer, Kumle, and delivered it to defendant’s elevator. After driving onto the scale as directed, the decedent got out of his truck and the defendant’s employees began to unload the soybeans by means of a power-driven hoist. In the process of unloading, the truck rolled back down the platform and struck the decedent, who was standing at the rear.
It was urged, in defense of the action, that the decedent was a “statutory employee” of the defendant company within the contemplation of K. S. A. 44-503 and that the plaintiff’s exclusive remedy was under the Workmen’s Compensation Act. This court, in denying such contention, said that the underlying premise on which liability under 44-503 is predicated is the existence of a contract between two employers; that the decedent was employed to do but one thing i. e., deliver the soybeans to defendant; and there was nothing to indicate that the defendant had contracted with either Kumle or the decedent for the latter to do any part of the defendant’s work.
We find a somewhat more analogous situation in the lumbering or logging business where a mill owner contracts with a “custom logger” to pay the latter an agreed sum for logs to be cut and delivered at the mill. It has been held, where the stumpage is owned by the logger and he uses his own equipment and employs his own labor, that the contract is one of purchase and sale, and the relationship that of vendor and vendee, rather than employer and employee under the Workmen’s Compensation Act. (Alexander v. Clemons Brothers Lumber Company, 135 So. 2d 477 [La.]; see, also, Smith v. Crossett Lumber Co., 72 So. 2d 895 [La.]; and Benton v. Pope, 130 So. 2d 724 [La.].)
The situation with which we are now confronted is easily distinguishable from that presented to us in Watson v. Dicky Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10. In that case the seller, Dickey Clay, sold its products at a delivered price and contracted with a trucking concern to deliver them on an agreed basis. The plaintiff, a truck driver operating under the contractee, was injured through the alleged negligence of a Dickey Clay employee while the truck was being loaded at the Dickey Clay plant. He brought an action for damages against Dickey Clay, the seller, not against the purchaser. We held in that case that the delivery of merchandise to its buyers was part of the sellers business which had been contracted to a third party, and that plaintiff’s exclusive remedy was under the Workmen’s Compensation Act, and not by means of a common-law negligence action. (See, also, Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512.)
Brookover’s final point is that the trial court erred in refusing to instruct the jury on the fellow-servant doctrine. This argument is based on the contention that Joe Nichols, who drove the tractor causing the injury, was Hacker’s co-employee and hence that Hacker is barred from recovery. The essence of the fellow-servant rule is that, ordinarily, an employer is not liable to an employee for injuries due solely to negligence on the part of his co-employees who are engaged with him in the common work of their common employer. (Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18; Carter v. Uhrich, 125 Kan. 192, 264 Pac. 31; Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042; 35 Am. Jur., § 334, p. 760.)
Before this doctrine can be applied, it is essential to show as a prerequisite, that a common employer is involved. That such a requirement must be met is apparent from the very cases cited by the defendant. We have already held that Hacker was not a “statutory employee” of Brookover, as the defense has contended, and there is no evidence whatever in the record that he had ever been hired by Brookover, for any purpose.
Plowever, the defendant suggests that Hacker was a “loaned employee” of Brookover, citing Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P. 2d 669, to support this position. The facts in Moseman are entirely unlike those here. A Top'eka florist provided the defendant Penwell, at the latter’s request, with a truck and driver for Penwell’s use in transporting flowers from the Masonic Temple to the cemetery following a funeral service. The evidence showed it was Penwell’s responsibility to transport the flowers as part of the funeral service, and the driver of the florist’s truck was instructed to follow Penwell’s instructions. On the way to the cemetery, the truck struck and killed Emery Moseman, a twelve year old boy, whose parents later brought suit against Pen-well. The court held that the evidence established the relationship existing between Penwell and the driver of the florist’s truck to be that of master and servant. We agree. However, there is no evidence of like import in this case, and Moseman has no relevance to the instant situation.
There is no evidence from which it may be inferred that Hacker had been “loaned” to Brookover to assist in Brookover’s feeding business. Hacker’s job was to deliver silage to the feedlot and dump the same into Brookover’s silo. In attempting to return to Richmeier’s farm, ostensibly for another load, he became stuck, and Brookover’s men and equipment attempted to help him. If anyone might be said to have been a “loaned employee,” it would seem more logical to imply such a status to Brookover’s employees in relation to Richmeier, while the former were engaged in an attempt to free Richmeier s truck from the mire. We believe the trial court did not err in declining to instruct on the fellow-servant doctrine.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant, Edward Earl Anderson, was convicted of first degree robbery, in violation of K. S. A. 21-527; two counts of attempted first degree murder, in violation of K. S. A. 21-101 and 21-401; and possession of firearms after a felony conviction, in violation of K. S. A. 21-2611. The habitual criminal act was invoked and he was sentenced to 15 years on count one, 30 years on count two, and 20 years on count three, the foregoing sentences to run consecutively; and 15 years on count four, such sentence to run consecutively with the first three counts.
Appeal has been duly perfected specifying various trial errors hereafter reviewed.
On the 20th day of May, 1966, Edward Earl Anderson (defendant-appellant) a male negro, entered the H & Y Grocery Store at 2331 East 13th Street in Wichita, Kansas, at approximately 11:00 p. m. He was wearing a grey shirt, a red plaid hunter’s cap and was carrying his arm in a sling. He walked up to the courtesy booth and handed the attendant a note to the effect that “Put money in sack. Signal you dead. Period.” A gun was noticed by the attendant sticking out of the sling worn by the appellant. An estimated $2,000 in currency was given by the attendant to the appellant in denominations of ten and twenty dollars, whereupon the appellant ran out of the store into the night. (Subsequently, various witnesses standing in line behind the appellant at the courtesy booth at the time in question and the attendant positively identified the appellant.)
Shortly thereafter news of the armed robbery was broadcast over the police radio and two officers, Floyd Hannon, III, and Alfred Crawford of the Wichita police department, proceeded to the area in their patrol car. After the officers stopped at the intersection of 11th Street and Piatt in the city of Wichita, they turned the corner and observed a colored man walking in a westerly direction. They maneuvered the patrol vehicle toward the man and he walked up to the side of the patrol car. When Officer Hannon attempted to open the door, the appellant put his knees against the car so the door had to be pushed open to get him back. When the appellant was confronted by Officer Hannon outside the patrol car and asked for identification, the appellant crouched a little, reached in his hip pocket and came up with a gun. The appellant then fired two shots, one of which seriously wounded Officer Hannon.
Officer Crawford rolled out of the patrol car and then heard another gunshot which shattered the glass in the rear window of the patrol car. Thereupon Officer Crawford fired a wild shot, and the appellant ran from the scene into the darkness. Officer Crawford went to the aid of Officer Hannon who was injured.
The appellant was later arrested outside the Starlight Club on a charge of drunkenness, and was soon identified in a lineup which connected him with the robbery and the shooting. A search warrant was then obtained to search the appellants home, and as a result of the search certain items were seized.
Several days later a second search warrant was issued, and the resulting search produced additional items.
On the 10th day of October, 1966, the appellant was brought before the trial court for trial to a jury which resulted in a finding and verdict of guilty on all counts.
The appellant specifies that the trial court erred in overruling his motion for change of venue.
In support of his motion for change of venue the appellant introduced three newspaper articles, the headlines of which were entitled: (a) “Fellow Officers Refuse Sleep in Gunman Hunt;” (b) Police Shun Rest to Hunt Gunman;” and (c) “Shooting Suspect Charged.”
Counsel for the appellant in his brief argues the evidence in this case showed the appellant’s arrest in connection with this crime warranted a front page story and extensive radio and television coverage. At no time, however, did the appellant in support of his motion offer any other evidence to show that prejudice existed in the community to the extent that it would be reasonably certain to deny him a fair trial.
The state introduced no evidence in rebuttal.
Before a change of venue to another county can be granted it must affirmatively appear that such prejudice exists as will be reasonably certain to prevent a fair trial. The ruling of the trial court upon this point will not be disturbed when supported by competent evidence. (State v. Turner, 193 Kan. 189, 392 P. 2d 863.) The allowance or refusal of an application for change of venue rests largely in the discretion of the trial court. (Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100; and Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255.)
In the recent case of State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63, it was said:
“The defendant’s failure to present affirmative evidence that prejudice existed so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. . . .” (p. 259.)
Counsel for the appellant argues the trial court should have taken judicial notice of the newspaper clippings for the purpose for which they were submitted — an indication of community feeling.
The trial judge in denying the appellant’s motion for change of venue made a rather lengthy statement setting forth his reasons for the decision, and indicated that he was not sure how far he could go in taking judicial notice of community feeling, but that he was aware of no feeling in the community which would prejudice the appellant in the trial of his case.
The state was required to produce no evidence refuting that of the appellant, particularly where the appellant failed to sustain the burden of proof cast upon him to show prejudice in the community. We find no basis in the record to support the appellant’s contention that the trial court erred in overruling his motion for change of venue.
The appellant specifies that the trial court erred in its failure to afford him a separate trial on the firearms charge by requiring him to go to trial on charges of first degree robbery and two counts of attempted murder, coupled with the firearms charge, to his prejudice.
The thrust of the appellant’s argument on this point is that the trial court erred in admitting records of prior convictions when the accused did not take the stand and put his character in issue.
The state in proving the firearms charge was required to show as one element of the offense the prior conviction of the appellant of a felonious offense. This was one of the ingredients constituting the offense under the firearms statute. In the trial of the case the state introduced evidence of appellant’s prior felony convictions, which included robbery with firearms, attempted second degree burglary and carrying a concealed weapon after conviction of a felony, all in the state of Oklahoma. Some of these prior felony convictions were enumerated in the firearms count of the information upon which the appellant was tried. Others were not listed but were offered by the state for the additional purpose authorized in K. S. A. 60-455, which reads:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The foregoing evidence of previous convictions was admitted by the trial court over the appellant’s objection.
The appellant contends that 60-455, supra, applies to civil actions only, and that K. S. A. 60-447 “makes clear this category, ‘Specific instances of Conduct,’ includes evidence of conviction of a crime which tends to prove a trait, but only after the defendant has put his character in issue.”
The appellant argues the admittance of these records of prior felony convictions disclosing armed robbery was inherently prejudicial to his case; that regardless of the nominal reason for their admittance, they could not help poisoning the appellant’s defense.
Counsel for the appellant misconstrued the application of 60-455, supra. Its application is not dependent upon 60-447, supra, where the accused is first required to open the door by introducing evidence of his good character. The cases decided under this section of the statute upon which the appellant relies are inapplicable. (State v. Roth, 200 Kan. 677, 438 P. 2d 58.)
The argument advanced by the appellant is controlled by the decision in State v. Wright, 194 Kan. 271, 398 P. 2d 339. It was there held that the rule against the admissibility of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence should come under one of the well-recognized exceptions to the general rule. Such evidence is admissible under 60-455, supra, when relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
It has also been held where evidence is offered under the exception afforded in 60-455, supra, it must be offered in the state’s case in chief. (State v. Roth, supra.)
In the instant case the offenses with which the appellant was charged all grew out of one series of transactions. This court has heretofore reviewed the Kansas history of joinder of offenses in State v. Brown, 181 Kan. 375, 312 P. 2d 832, at pages 380 through 383 of the official report. In Brown it was held where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. The court further held whether a defendant who is charged with several separate and distinct felonies, as above related, may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests in the sound judicial discretion of the trial court. (See, also, State v. Hacker, 197 Kan. 712, 421 P. 2d 40, cert. den. 386 U. S. 967, 18 L. Ed. 2d 119, 87 S. Ct. 1050; and see, State v. Momb, 154 Kan. 435, 119 P. 2d 544; and State v. Browning, 182 Kan. 244, 320 P. 2d 844.)
The appellant also specifies that the trial court erred in the giving of instruction No. 18, which was substantially equivalent to instruction No. 10 set out in the opinion of State v. Wright, supra, at page 276 of the official report. For the reasons heretofore stated the trial court did not err in giving instruction No. 18.
The appellant specifies that the trial court erred in allowing into evidence currency found in the appellant’s room over the objection of counsel.
When the appellant’s room was searched the second time by law enforcement officials pursuant to the second search warrant, they found United States currency totaling $400 in denominations of ten and twenty dollar bills hidden in the waste basket beneath a paper sack which was inserted to interline the waste basket. This currency together with a .22 long rifle hollow point live bullet, which was found on top of the dresser in the appellant’s room, were admitted into evidence over objections. Evidence had previously established that Officer Hannon was shot with a .22 caliber bullet, and he identified the pistol used by the appellant in the shooting to be a .22 caliber revolver.
The appellant argues this currency could not be identified as the money taken in the robbery; that the money was found subsequent to the confinement of the appellant; and that there was evidence that other people had control of and access to the apartment in which the appellant was living. The appellant also argues that while the fruits of the crime are always admissible at the trial as tending to show the possessor’s participation, an essential to the admissibility of such evidence is that a prima facie showing be made that the property was stolen. It is argued there was no connection in the instant case linking the robbery to the currency.
While it was specifically admitted at the trial that the currency in question could not be identified as the money taken in the commission of the crime, the testimony of the attendant at the courtesy booth disclosed the currency given to the appellant, whom he identified, was in denominations of ten and twenty dollar bills. There was other evidence given by the landlady where the appellant stayed. She testified the appellant’s rent had been due the day before and was not paid; the appellant had been behind on his rent for a period of several weeks due to a stay in the hospital, and he had been paying an extra dollar per week on his weekly rent to make up for the deficit. His landlady stated she was home at 6:30 p. m. on the night of the robbery and heard the appellant in his apartment. However, she did not see him. She went to a movie and later that evening returned. At about 12:30 a. m. the following morning, which was approximately one hour after the robbery, the appellant came to her and paid her all of his rent, paying him up until May 26, 1966.
The objections of the appellant to the admission of the currency in evidence go more to the weight of the evidence than to its admissibility. In 1 Wigmore on Evidence (3rd Ed.) §154, it is stated:
“The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable. But where the denominations of the money found and the money taken correspond in a fairly close way, the fact of the finding of that specific money would have probative value and be relevant, because the money found is fairly marked as identical with the money taken.
“Another mode, however, of making the fact of money-possession relevant is to show its sudden possession, i. e. to show that before the time of taking the person was without money, while immediately after that time he had a great deal; this reduces the hypotheses to such as involve sudden acquisition, and a dishonest acquisition thus becomes a natural and prominent hypothesis. On such conditions the possession of unidentified money becomes relevant.” (p. 601.)
The foregoing rule was followed in State v. Grebe, 17 Kan. 458, where it was held that possession by one who had been admittedly poor of a large quantity of money was relevant evidence against him in a case involving the larceny of money. In State v. Gauger, 200 Kan. 563, 438 P. 2d 463, the question concerned the admissibility of $14 in currency. There the court stated:
“The location of the currency when found (beside the appellant) and the amount thereof ($14.00) had a strong tendency in reason to prove facts material in the case. The currency had a natural and logical connection under the circumstances shown by the evidence to raise a strong inference that appellant took the money from the billfold and then hid it beside him to prevent the officers from finding the fruits of the crime on his person.” (p. 565.)
The appellant specifies that the trial court erred in appointing one doctor as a sanity commission.
K. S. A. 1967 Supp. 62-1531 provides in part:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state security hospital for safekeeping and treatment; . . .”
After the state had rested its case, counsel for the appellant requested the appointment of a commission for the purpose of ex amining the appellant to determine whether he was capable o£ assisting in his defense and whether he was incompetent. This was occasioned by a refusal of the appellant to follow the advice of his trial counsel concerning the exclusion of evidence found as a result of the first search warrant which was properly issued but was not properly returned. The state made no effort to introduce the evidence seized as a result of the first search. The appellant took it upon himself, however, to insist that the first search warrant which he referred to as “illegal” be placed in evidence.
By reason of counsel’s request for a sanity commission, the trial court appointed one psychiatrist to examine the appellant. Counsel for the appellant made no objection at any time throughout the trial as to the appointment of a single doctor to the commission, nor was the question raised on a motion for a new trial, as to the number of persons required to serve on a commission.
When the trial court received the doctor’s report it considered the report and all other evidence before it, and specifically found the appellant to be sane, capable of comprehending his position, and capable of aiding in his defense.
The appellant’s failure to object at the trial to the appointment of one psychiatrist to serve as a commission, or to raise the points at any time before the trial court, in our opinion constitutes a waiver of his right to object and thereby precludes him from asserting the point for the first time on appeal. Furthermore, pursuant to the statute the trial court made a specific finding of its own. The provisions of 62-1531, supra, authorize the determination of the accused’s sanity by three alternative methods: (1) A finding by tire trial court in which such indictment or information is filed; (2) a finding by a commission; or (3) a finding by another jury empaneled for the purpose of trying such question. The finding by the trial court upon the evidence before it in the instant case was sufficient to fulfill the requirements of 62-1531, supra.
In our opinion the trial court did not err in ruling on any of the matters specified by the appellant, and its judgment should be and hereby is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant, John C. Caldrone, appeals from a conviction of possessing burglary tools in violation of K. S. A. 21-2437. In the same information defendant was charged with attempted grand larceny but was acquitted of that charge.
According to the state’s evidence, Mrs. Jean Nickel, a resident of Prairie Village, heard pounding noises outside her house at about 5:00 a. m., on September 3, 1967. She looked out and saw a man pounding on a cigar truck driven by her neighbor, Mr. Dozier, and owned by Niles & Moser Cigar Co. Mrs. Nickel called the police and officers Morrow and Smith arrived within a few minutes, at 5:14 a. m.
As the officers arrived, the headlights of their police car revealed a man by the Dozier truck. The officers put a spot light on the man and described him as wearing dark trousers and a light sweater. The man ran and officer Morrow pursued. Morrow heard a car door slam, ran to the car and found defendant dressed in dark trousers and a light green sweater.
Morrow and Smith found various tools in the car and in the trunk. The tools and devices included tin snips, bolt cutters, hatchet, screwdrivers, a shortwave transistor radio with a listening device, and a telectron garage door opener.
Detective Fred Hauser of the Kansas City, Missouri, Police Department, testifying as an expert, gave his opinion that the tools and devices were commonly used as burglary tools. Hauser also testified that he had known the defendant for nineteen or twenty years and that four prior convictions of defendant for burglary and larceny, set out in an exhibit offered by the state, were convictions of defendant in the State of Missouri.
Dozier, driver of the truck, testified the truck had a burglar alarm, that it was in operation and controlled by the doors and brakes. He described the hole, found the following morning, which had been cut into the side of the truck. He said the truck contained cigars of the value of approximately $3,000 and that three boxes of cigars were missing. The missing boxes were not in defendant’s possession when he was apprehended.
Although numerous points are raised on appeal, only two basic issues are involved: (1) joinder of the two charges in one information and (2) the constitutionality and interpretation of K. S. A. 21-2437.
Defendant claims error by the trial court in overruling his motion for separate trials as to attempted grand larceny, charged in Count I, and possession of burglary tools, charged in Count II.
In this jurisdiction the question of joinder of separate felonies in one information is viewed largely as a question of procedure resting in the sound judicial discretion of the trial court. (State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Aspinwall, 173 Kan. 699, 252 P. 2d 841, and State v. Neff, 169 Kan. 116, 218 P. 2d 248, cert. den. 340 U. S. 866, 95 L. Ed. 632, 71 S. Ct. 90; and State v. Hodges, 45 Kan. 389, 26 Pac. 676.) While the exercise of judicial discretion by a trial court in determining whether joinder is permissible depends on the circumstances attendant in a particular case (State v. Thompson, 139 Kan. 59, 29 P. 2d 1101), generalized guidelines are well-established. In general terms where offenses constitute one comprehensive plan, transaction or where one offense is a corollary to the other, they may be joined as separate counts in one information and tried in one trial. (State v. Martin, 175 Kan. 373, 265 P. 2d 297; State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027; State v. Aspinwall, supra, and State v. Brown, supra.)
In the recent case of State v. Omo, 199 Kan. 167, 428 P. 2d 768, the consolidation for trial of charges in two informations consisting of burglary, larceny and possession of a pistol after a conviction of a felony was held not to be prejudicial error warranting a new trial. In State v. Browning, 182 Kan. 244, 320 P. 2d 844, the defendant was charged in one information with two counts of possession of a pistol, after being convicted of armed robbery, and in another information with four counts of armed robbery and one count of attempted robbery, all at different times. Over objection, defendant was tried in one trial for all offenses contained in both informations. On appeal this court affirmed, holding the question of joinder to rest in the discretion of the trial court and that consolidation of the two informations for trial did not amount to prejudicial error.
Under the circumstances of this case, the offenses of attempted larceny and possession of burglary tools, are certainly corollary to each other and a part of one comprehensive plan.
In view of the evidence submitted a separate trial here, as to either offense, would have barred a subsequent prosecution on the other under the provisions of K. S. A. 62-1449.
We find no error in the trial court’s rulings denying a motion for separate trials or in overruling defendant’s subsequent motion for a mistrial for failure to separate.
Directing our attention now to the charge of possession of burglary tools, we shall examine the points raised by defendant. We should first point out that this case was tried November 13, 1967. The trial court did not have the benefit of our decision in State v. Hart, 200 Kan. 153, 434 P. 2d 999, announced on December 9, 1967. The statute involved, K. S. A. 21-2437, reads as follows:
“That any person who makes, mends, designs, or sets up, or who knowingly has in his custody or concealed about his person, any instrument or any other mechanical devices whatsoever, nitroglycerine or other explosive, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a dwelling of any kind shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years.”
The defendant here, by asserting similar reasoning to that advanced by the appellant in the Hart case, argues that K. S. A. 21-2437 is unconstitutional because it fails to prescribe on its face a requirement of intention. Defendant’s assertion is answered by our decision in Hart where we held:
“As construed in this opinion, K. S. A. 21-2437 is not invalid as being uncertain and vague or as being otherwise unconstitutional.” (Syl. ¶6.)
It was pointed out in the Hart opinion that, although the Kansas statute omits specific reference of intent, a proper construction of 21-2437 requires an intent on the part of one having burglary tools in his possession, to employ those tools in burglarious activities.
Further, in the Hart opinion the court said:
“There is no language in the present statute clearly indicating that criminal intent is not required, nor can such an inference be drawn from its language. Moreover, consideration of the subject matter of the statute, and the general purpose to be served thereby, leads us unerringly to the conclusion that the gravamen of the offense proscribed by the statute is, so far as this case is concerned, the possession of burglary tools intending they be put to a burglarious use. Otherwise, the innocent possession of ordinary tools which are suitable for and commonly used in unlawfully breaking and entering another’s property, might very well subject an honest workman to tire statute’s penalty. Certainly the legislature intended no such outlandish result when it enacted this legislation. . . .” (p. 157.)
We concluded in Hart that the statute so construed was free of constitutional infirmity.
Our decision in Hart was followed by that in State v. Jerrel, 200 Kan. 415, 436 P. 2d 973, announced on January 27, 1968. Jerrel was charged jointly with Hart in the district court of Cloud County. On appeal Jerrel, like Hart, attacked the constitutionality of 21-2437 as being unreasonably vague and indefinite. We reviewed the rationale of our holding in Hart and adhered to that decision.
Defendant now asks that we reconsider our holding in Hart. We have carefully examined his arguments and find them to essentially stem from the same reasoning as that advanced in the Hart and Jerrell appeals. We are not persuaded and adhere to the conclusions reached in Hart and Jerrel.
Defendant next contends the trial court erred in overruling his motion to quash the amended information, since it did not allege an element of intention to put the tools to a burglarious use and was therefore fatally defective.
The accusatory portion of the amended information reads as follows:
“. . . one John C. Caldrone did then and there unlawfully, willfully, feloniously and knowingly have in his custody instruments commonly used for breaking into safes, warehouses, stores, shops, offices, and dwelling houses, to-wit:”
Then follows a list of tools found in defendant’s car.
It is true, the information did not in so many words charge a criminal intent, however, it is drawn in the language of the statute, preceded by the adverbs unlawfully, willfully, feloniously and knowingly. We believe the information amounts to a statement of the facts constituting the offense in plain and concise language and serves to fully apprise defendant of the charge in compliance with the provisions of K. S. A. 62-1004.
This court has repeatedly held that an information is good if it states the offense in the language of the statute. (State v. Eason, 163 Kan. 763, 186 P. 2d 269; State v. Rafferty, 145 Kan. 795, 67 P. 2d 1111; 5A West’s Kansas Digest, Indictment and Information, § 110; 3 Hatcher’s Kansas Digest [Rev. Ed.], Indictment & Information, § 32.) In State v. Hillis, 145 Kan. 456, 65 P. 2d 251, an information was held sufficient to charge the offense of petty larceny, without additional words, to charge criminal intent. In State v. Morris, 124 Kan. 505, 260 Pac. 629, an information charging forgery under R. S. 21-608, now K. S. A. 21-608, omitted the words “with intent to defraud.” Neither was the phrase included in the language of the statute. We find this statement in the opinion:
“A good form book is a valuable adjunct to the office equipment of a prosecuting attorney, and he would do well to consult it before drawing an information in an important criminal case; but the day is past in this jurisdiction, we trust, when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense. There is no pretense here that defendants did not understand they were on trial for the fraudulent making of a writing — a check on a Hiawatha bank — to the prejudice of the owner of the filling station, and the bank, and the man whose name they wrote on the check. In such circumstances not only was the first count of the information sufficient, but the criminal code forbids this court to set at naught the judgments entered against defendants under the circumstances. (R. S. 62-1718 [now K.S. A. 62-1718].) . . .” (p. 508.)
While as indicated in State v. Morris, supra, good pleading would have included an allegation of intent to make burglarious use of the tools possessed, we believe the information drawn in the language of the statute, preceded by the adverbs noted, was sufficient to charge an offense of possessing burglary tools.
Next defendant claims error in overruling his motion for discharge on the ground that the evidence was legally insufficient as to Count II. On this point defendant argues that there was no inference or suggestion made by the state of anything that defendant intended to do other than to attempt to rob the cigar truck. Since the jury acquitted defendant of larceny and, further, since a truck is not included as an item in the statutory list of places or things defined in K. S. A. 21-2437, defendant says there was insufficient evidence of a purpose in possessing the tools to justify submission of the matter to the jury.
The state answers that it was never contended that the tools, found in the trunk of the defendant’s car, were actually used to cut into the truck since the time element would have precluded the defendant from putting them back in the trunk of the car while being pursued by the police. The state’s position seems to be that possession of tools for any burglarious purpose is sufficient.
The state’s position is in line with what was said in State v. Hart, supra:
“It is appropriate to observe, however, that an intent to use the tools in a particular or specific burglary is not required. The intent is sufficient if it consists of a general purpose to employ the instruments in the course of bur glarious episodes, whenever and wherever opportunity might present itself. (12 C. J. S., Burglary, §69, p. 754; People v. Taylor, 410 Ill. 469, 102 N. E. 2d 529.)” (pp. 157, 158.)
The defendant overlooks relevant evidence on the point. Detective Hauser testified that he had previously examined all of the tools and devices listed, that they were commonly used by thieves for breaking into stores, safes, shops, cars, etc., and that the screwdriver was specially good as a pry. While Hauser was on the stand, records of four prior convictions of the defendant for burglary and larceny were offered for the purpose of proving defendant’s intent. Hauser further testified that he had known defendant for nineteen or twenty years and that the prior convictions referred to were defendant’s convictions in Missouri. Evidence of prior convictions of larceny and burglary is admissible, under proper instructions, and relevant and material to the issues whether burglary tools were possessed with the intent that they be used for burglarious purposes. (K. S. A. 60-455, State v. Jerrel, supra.) Proof of intent may be inferred from the circumstances which attend the possession of burglary tools. (State v. Hart, supra.)
We believe the evidence sufficient to warrant determination by the jury of the question whether defendant here possessed the tools and devices found in his car with the requisite intent to employ them in burglarious pursuits.
The most critical point raised by defendant, and that which compels a reversal, concerns the instructions submitted to the jury.
The instructions are set out in full in the abstract. Defendant objects to Instruction No. 10 as submitted because it failed to require intention in connection with possession. In this instruction the trial court attempted to set out the elements of the offense of possessing burglary tools, as charged in Count II. The instruction set out the language of the statute and then defined the term “knowingly” as follows;
“The term “knowingly’ as used in the above statute means with knowledge that the tools were within the persons (sic) custody and know that the same are commonly used for effecting a “breaking into.’ ”
The defendant contends that failure to mention the requirement of intent in any manner or to include in the court’s definition of “knowingly” a statement that the term means an intent on the part of a possessor to use the instruments for breaking into one of the items listed in the statute makes the instruction fatally incomplete. Defendant requested an instruction defining the word “knowingly” in accord with his theory. The requested instruction was rejected.
The state counters defendant’s contention by arguing that the trial court’s Instruction No. 7 meets the issue. No. 7 was a general instruction defining the terms “unlawfully,” “feloniously” and “willful.” Feloniously was defined as meaning with intent to commit a crime.
Examining the chronological order and structure of the instructions, as a whole, we are unable to agree with the state. The definitions set out in Instruction No. 7 are not connected by reference with the elements of the offense set out in Instruction No. 10. The definition of “feloniously” as meaning intent to commit a crime in Instruction No. 7 does not fulfill the requirements of intent to use for burglarious purposes required by our interpretation of the statute in the Hart decision. Moreover, we believe that Instruction No. 10, in the form submitted, implies that a complete statement of the elements of the offense are contained therein, thereby misleading the jury. The term “knowingly” as defined therein means the jury need only find that an accused in possession of burglary tools, knows that he has custody thereof, and that such tools are commonly used to effect a breaking into. In other words, under the instructions as submitted, the jury could convict without finding intent by the possessor of burglary tools to put them to burglarious use. We said in Hart:
". . the gravaman of the offense proscribed by the statute is, so far as this case is concerned, the possession of burglary tools intending they be put to a burglarious use. Otherwise, the innocent possesion of ordinary tools which are suitable for and commonly used in unlawfully breaking and entering another’s property, might very well subject an honest workman to the statute’s penalty. . . .” (p. 157.)
Under the circumstances related the failure to instruct that intent on the part of a possessor, to employ instruments and devices, as described in the statute in burglarious activities, resulted in substantial prejudice to defendant’s rights. Thus defendant is entitled to a new trial.
In State v. Hart, supra, the trial court submitted instructions which we found to adequately state the law governing a case involving a violation of K. S. A. 21-2437. As an aid to members of the bench and bar, instructions dealing with the issues raised were included as an appendix to the Hart opinion. We call attention thereto.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an action to recover damages for alleged negligent injury.
The issues being limited a very general statement of the basic facts will suffice.
The plaintiff, Dolly Anderson, was walking down the corridor on the fourth floor of the Brotherhood Building in Kansas City, Kansas. The building is owned and operated by the defendants as an office building. Shortly before the plaintiff reached the door of her office she allegedly slipped upon a heavy accumulation of wax causing her to fall to the floor and be seriously injured.
This action was then brought by the plaintiff in which she alleged her injuries were caused by the defendants or their em ployees carelessly and negligently permitting the floor to become and remain slick and slippery as the result of the presence of an excessive amount of wax.
The case was tried to a jury which returned a verdict in favor of the defendant and judgment was rendered thereon. The plaintiff has appealed, raising but one issue. She claims:
“It was a manifest abuse of discretion by the trial Court to re-open the defendants’ case-in-chief, after the jury had begun its deliberations, for the offering and admission into evidence of the bottle of wax.”
The facts relating to this issue are also limited.
During the course of the trial a small bottle containing a sample of the wax used on the floor was identified and the identity was admitted by the plaintiff. The bottle of wax was not offered or received in evidence during the regular course of the trial. Neither does it appear that either party made any further use of it or desired it in evidence.
In due course the case was closed for the introduction of evidence, closing arguments were made and the jury retired to consider its verdict. Shortly after it had retired the jury returned and, before the trial court and counsel, requested, through their foreman, that the bottle of wax be sent to the jury room. The time for adjournment being near, the jury was excused until the following day. The matter was then considered by court and counsel. Defendants’ counsel moved to reopen the case and admit the bottle of wax in evidence. Counsel for plaintiff objected to opening the case and admitting the sample as an exhibit. The trial court reopened the case, admitted the bottle of wax in evidence and gave it to the jury with instructions not to open the bottle for the purpose of experimenting with the wax. The foreman of the jury stated:
“The only thing would be so they could see how thin it was inside the bottle, and we could take it up with us.”
Although the jury requested the sample, the case was reopened and the sample introduced as an exhibit at the request of the appellees.
We have held that the question of reopening a case for the submission of additional evidence lies strictly in the discretion of the trial court. In In re Estate of Cox, 184 Kan. 450, 337 P. 2d 632, we stated at page 452.
“. . . We are committed to the rule that it is discretionary as to whether a trial court shall permit a party to reopen a case to introduce additional evi dence in support of his case in chief and our decisions approve that practice where the record fails to disclose conduct amounting to abuse of discretion. (In re Estate of Wittman, 161 Kan. 398, 402, 168 P. 2d 541.) . . .”
The appellant does not dispute the propriety of the above statement of law but contends that the reopening of the case and the admission of the bottle of wax as an exhibit constituted a clear and manifest abuse of discretion on the part of the trial court requiring a reversal.
Under the circumstances we would not interfere with the trial court’s discretion if the sample of wax was otherwise admissible. However, the appellant’s contention that “it was an abuse of discretion to admit into evidence the bottle of wax without the proper foundation having been laid for it,” presents a much more serious question. The fact that a case is reopened for admission of additional evidence in the form of an exhibit furnishes no basis for the abandonment of the necessary preliminary proof to make it admissible.
The question which we have here is more a question of admissibility of evidence than a question of the trial court’s discretion. If the evidence was not admissible it was not a discretionary matter.
Samples to be admissible as evidence must be shown to reflect the condition of the substance at the time involved in the issues. It must be shown that no substantial change has taken place in the substance to be exhibited because of lapse of time. Although we have no case in this state specifically in point the statement would appear to be the very general rule. In 32 C. J. S., Evidence, § 607, page 765, we find the following:
“. . . It must also be shown to the satisfaction of the court that no such substantial change in the article exhibited as to render the evidence misleading has taken place. The determination of whether there has been a change, so substantial or material, in an article or object, that it should not be admitted rests largely in the discretion of the trial court, and it is not necessary that the article be identically the same as at the time in controversy. . . .”
In 95 ALR 2d page 696, the general rule is stated in quite similar language:
“It has been generally held that at the time a sample is offered in evidence, it must be shown that it is in the same or substantially the same condition it was in at the time such condition became material to the issues involved; however, the fact that the offered sample has undergone some change in condition, whether occasioned by lapse of time, or otherwise, may not of itself afford sufficient grounds for excluding it. . . .”
Here there was no evidence whatsoever offered as to the condition of the four and one-half year old sample.
In Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019, syl. 4, we applied a similar rule to photographs, stating:
“Photographs should not he accepted as absolute and positive evidence in a negligence case without an opportunity for the opposing party to inquire as to whether they represent with fair accuracy the place of the happening and the physical condition surrounding it at the time of the injury.”
The record discloses that the accident occurred on September 25, 1962. The sample bottle of wax was obtained in October or November, 1962. The case was tried and the sample submitted to the jury the latter part of May, 1967. The sample of wax stood in the bottle for four and one-half years before it was submitted to the jury. We are not informed as to how many times the cork was removed from the bottle or how well the cork was fitted to prevent evaporation. There are plant waxes, earth or bituminous waxes and synthetic waxes and each has a different volatile quality. (Chamber’s Encyclopaedia Volume 14, page 458.) The waxes vary all the way from thin liquids to solids. It would be improper for us to assume that a liquid wax would remain four and one-half years in an unsealed bottle without a change in its consistency.
The only foundation laid for the admission of the bottle of wax was its source and chain of possession. We are inclined to believe that had it been intended to introduce the sample as an exhibit in the case in chief the jury would have been informed as to what happened to the sample of wax in the normal course of events while it remained in the bottle for four and one-half years. The thinness or thickness of the wax would mean nothing to the jury unless it was the same when delivered to them as at the time of the accident.
We must conclude that lacking proper preliminary proof the sample bottle of wax was improperly admitted as an exhibit.
We cannot agree with appellees’ suggestion that the exhibit, even though erroneously admitted, did not affect the substantial rights of the parties. The much ado which was made about the bottle of wax must have left a rather deep impression on the members of the jury.
The judgment is reversed with instructions to grant a new trial.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
Appellants seek reversal of a district court order refusing to suppress certain inquisition testimony allegedly taken unlawfully and in violation of appellants’ federal and state constitutional rights.
On behalf of the state of Kansas and the state highway commission the attorney general in February, 1966, commenced this action against thirteen corporate suppliers of liquid asphalt, alleging the corporations had allocated territory and rigged prices on their asphalt sales to the highway commission in violation of the Kansas antitrust laws (K. S. A. 50-101, et seq.). The action sought recovery of damages and attorney fees (50-108), the full consideration paid (50-115), one hundred dollars per day for each day of the unlawful activity (50-145) and ouster and injunction from participation in such unlawful activity (50-146).
In the fall of 1965, and prior to filing the action, and as a part of an investigation of the conduct of the corporate suppliers of asphalt, the attorney general subpoenaed certain sales employees of the corporations to appear and testify at an inquisition pursuant to K. S. A. 50-153. The witnesses were granted immunity from prosecution as provided in K. S. A. 50-156 and were required to answer questions propounded to them. All proceedings were recorded and transcribed by a certified shorthand reporter and in some instances the witnesses signed transcripts of their testimony. Where a witness was accompanied by counsel, counsel was permitted to remain until immunity was granted to the witness at which time counsel was required to leave.
In October, 1967, the state attempted in this action to depose certain witnesses who had testified at the inquisition. Counsel for the state, in response to inquiry, indicated use would be made of die inquisition testimony in the event the witnesses “in any way become reluctant or indicate a lack of memory.” The witnesses on advice of then' attorneys, who with one exception were also attorneys for the respective corporate employers, thereupon refused to testify and their counsel demanded suspension of the taking of the depositions pursuant to K. S. A. 60-230(d) on the ground the examination was being conducted in bad faith and in such a manner to annoy, embarrass, and oppress the deponent.
Two individual witnesses and eleven corporate defendants then filed in the trial court motions to suppress the inquisition statements taken of the various witnesses and their use by the attorney general in any way in the trial of the case. The trial court directed that copies of the statements be furnished to counsel for movants but denied the motion to suppress. Certain of the corporate defendants and one individual witness, Archibald C. Jones, an employee of defendant Mobil Oil Corporation, filed notices of appeal to this court from that denial order.
Appellants contend the action of the attorney general in denying the witnesses and their employers representation by counsel during the inquisitions was violative of their rights under the fifth, sixth and fourteenth amendments of the federal constitution and sections ten and eighteen of the bill of rights of our state constitution. Appellants do not attack the constitutionality of our inquisition statutes but assert they were used in an unconstitutional manner when the witnesses compelled to testify were denied counsel.
The corporate appellants assert they — the corporations — had a constitutional right to be represented by counsel at the inquisition. Appellees broadly contend a corporation as such has no constitutional rights. There are cases holding the privilege against self-incrimination is a personal one which can be raised by individuals alone and does not extend to a corporation (see United States v. Bowman, 236 F. Supp. 548, and cases cited therein). However, we know of no reason why constitutional privileges which by their nature may be applicable to artificial creatures such as corporations should be denied. We consider the right to counsel to be of that character. At the very least, a corporation is a “person” entitled to the protection of the due process clauses of the fifth and fourteenth amendments (Grosjean v. American Press Co., 297 U. S. 233, 80 L. ed. 660, 56 S. Ct. 444) and of section eighteen of the Kansas bill of rights.
The corporate appellants argue they had a right to be represented by counsel at the inquisitions because they were the ones against whom the inquisitions were directed. They maintain they were “parties aggrieved” by the inquisitions. They would equate their standing to raise the question with the right to complain accorded one against whom a search was directed as declared by search and seizure cases like Jones v. United States, 362 U. S. 257, 4 L. ed. 2d 697, 80 S. Ct. 725. We do not think that line of cases, decided as they were on the basis as to who may qualify as a “person aggrieved by an unlawful search and seizure,” are analogous here; those cases dealt with a specific res — property of the corporation which was seized. We have no such situation in the case at bar.
The inquisition procedure here involved is an historically well-known legislative device enabling the state’s chief law enforcement officer to gather information necessary for effective enforcement of our antitrust laws. The proceeding is not adversary but is ex parte; it is investigative and not adjudicatory. Of course, facts uncovered through it may lead to an adjudicatory hearing, civil or criminal, the same as information disclosed by any other method of investigation. That which the corporate appellants are really asserting is the right to be present during the attorney general’s investigation. The right to an adjudicatory hearing includes the right to counsel. But we know of no constitutional right in anyone to be present at an investigation simply because his conduct is the subject of the inquiry and he may in the future be prosecuted as a result of information developed during the investigation. A witness appearing in an inquisition could well be a former employee of a corporation or he could be a person without any business connection with the corporation; in either event we know of no right in the corporation to be notified of the proceeding, to appear thereat or to be represented by counsel. It is true vitally relevant information concerning violations of our antitrust laws may sometimes be secured only through the testimony of employees or agents of those corporations suspected of irregularities. Our inquisition statutes furnish a procedure to obtain such information which might not otherwise be obtainable. Nevertheless, the employees appear as mere witnesses at a private proceeding. In the instant case the employees are described as sales representatives. Does the fact the witnesses happen to be employees of a corporation give rise to any constitutional right in the corporation to be represented by counsel at the proceeding? We find no persuasive authority to that effect and we think no such right arises. The witnesses themselves may be compelled to attend and give evidence but the corporation is not under compulsion to do anything. The witnesses may be required to testify only after complete immunity from prosecution is granted. If the corporate employers have entitlement to greater rights at the hearing simply because the witnesses examined happen to be their employees, where does that entitlement end? Do they thereby step into the shoes of the witnesses and assume their rights? Such a merging of identities would be illogical. Carried to its extreme the employers would get the benefit of the immunity granted to the witnesses because of the employer-employee relationship. This absurd result, of course, would defeat the principal purpose of the inquisition statutes.
We hold then that at an inquisition held pursuant to K. S. A. 50-153 where an employee is questioned about possible antitrust law violations by his corporate employer the corporation has no constitutional right to be represented by counsel.
The corporate appellants also question the denial of right to counsel of their employees. The right to counsel is a privilege of a personal nature and, where it exists, its violation may be asserted only by the one entitled to claim the privilege (see Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 S. Ct. 370). Hence the corporate appellants lack standing to raise the issue of denial of counsel to their employees and we so hold.
We trun to appellant Jones’ contention he was denied his constitutional right to counsel when his inquisition testimony was taken. Jones relies primarily upon the dissenting opinion of four justices in In re Groban, 352 U. S. 330, 1 L. ed. 2d 376, 77 S. Ct. 510. There the state fire marshal of Ohio in the course of an investigation of a suspected arson subpoenaed Groban to testify before him. No immunity was granted and Groban was not permitted counsel at the hearing. He refused to testify and was convicted for contempt. The majority of the federal supreme court upheld the conviction on the theory the proceeding was administrative rather than prosecutorial and there was no constitutional right to representation by counsel in such situation. The dissent was premised upon the view the state fire marshal was in fact a prosecutorial officer and the person examined could have been convicted by the words of his own mouth since no immunity was granted. The dissenters also condemned the fact the witness would have no effective way to challenge his interrogator’s testimony as to what was said at the secret inquisition.
In the case at bar Jones, along with the other witnesses, was granted immunity from prosecution pursuant to K. S. A. 50-156 which provides:
“No person shall be excused from testifying in any proceeding under this act, or in any action under any of the laws referred to in section 1 [50-153] of this act, on the ground that his testimony may incriminate him; but no person shall be prosecuted or punished on account of any transaction or matter or thing concerning which he shall be compelled to testify, nor shall such testimony be used against him in any prosecution for any crime under the laws of this state.”
The fact immunity was granted removes this case from the crux of the Groban dissent, not to mention the fact the proceedings were recorded and transcribed by a certified shorthand reporter, and the transcripts signed by the witnesses. We are aware of no authority condemning an inquisition procedure where immunity has been granted to the witness.
It is argued the right to counsel is broader than the mere privilege against self-incrimination. Certainly this would be true in an adjudicative proceeding, but we can see no harm from the absence of counsel in a purely investigatory proceeding. Moreover, our immunity provision protects against more than violation of the self-incrimination right — it gives the witness complete immunity from prosecution for any transaction concerning which he is compelled to testify.
Although we are not concerned with determining rights in other jurisdictions, it has been held that any testimony elicited in such a proceeding, or its fruits, as distinguished from independent evidence, may not be used in federal prosecutions against the witness— the witness and the federal government are left in the same position as if the witness claimed his privilege in the absence of a state grant of immunity (Murphy v. Waterfront Comm'n., 378 U. S. 52, 12 L. ed. 2d 678, 84 S. Ct. 1594). It follows that the protection of the due process clause of the fourteenth amendment would be available to the witness in any jurisdiction within our federal system. Thus it appears the witness was fully protected.
We hold that a witness at an inquisition who has been granted immunity pursuant to K. S. A. 50-156 has no constitutional right to be assisted by counsel in giving testimony.
Finally, it is urged the attorney general exceeded his statutory authority in the denial of counsel to appellants during the inquisition. Without laboring the matter, much of that which has already been said is applicable. The statutes provide essential safeguards for the witnesses and we find no violation of the statutes.
The trial court’s order was correct and it is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
This is an action for damages for personal injuries arising out of an alleged assault and battery. A jury awarded plaintiff compensatory damages in the sum of $1,500 and punitive damages in the sum of $3,500. Defendant appeals.
Plaintiff was a resident of Wichita; his occupation was that of painter and truck driver. Defendant was a farmer residing near Fall River, Kan. He also owned a home in Wichita. Plaintiff had been acquainted with defendant’s son, Bobby, for a number of years but prior to the incident in question was not acquainted with defendant.
On May 13, 1964, defendant’s son Bobby had borrowed defendant’s pickup truck from the Fall River farm and had driven it to Wichita. At about 4:00 p. m. Bobby met plaintiff at a tavern on North Broadway and commenced drinking with him. After having several beers there the two left in the pickup for another bar. They spent the balance of the night drinking beer and whiskey in various taverns in Wichita. At some point in the evening Bobby had either called his mother about leaving the pickup at some club along North Broadway, or Bobby’s father, the defendant, had called Bobby saying he wanted the truck.
Bobby and plaintiff then spent the night at defendant’s home in Wichita; they arose about 10:00 a. m. on May 14 and resumed their drinking marathon at various taverns. Eventually they found their way to the Tiger Club where they continued to imbibe and talk with friends. Meanwhile defendant and his wife had come to Wichita to get the pickup truck, arriving about 5:00 or 5:30 p. m. At one club at which they stopped they were advised Bobby and plaintiff had been there earlier. As defendant drove by the Tiger Club he noticed his pickup parked in front and he stopped.
From this point on the testimony offered at trial sharply conflicted. Defendant’s version was that his wife walked over to the pickup; plaintiff was sitting in the truck on the driver’s side; the motor was running; she asked him to get out, he refused and pushed the truck door causing her to lose her balance and fall; defendant then went to her aid; when he reached the truck plaintiff was backing it; defendant turned the ignition off; as he did so plaintiff struck him in the face and he struck back; seconds later the altercation ended and defendant drove the truck away.
For plaintiff it was shown he and Bobby left the Tiger Club together and started for the pickup truck; plaintiff had just got in the seat when defendant, without saying a word, leaped into the cab and severely beat him on the head and face. Defendant struck several blows. Meanwhile, Bobby was saying, “He hasn’t done anything. Dad. He’s with me. He’s with me.” Defendant’s wife, who had followed him over to the pickup, was shouting, “Don’t do it. Don’t do it.” “Let him alone.” After the fight was over Bobby kept repeating threats against his father. Plaintiff denied any conversation with defendant’s wife prior to the altercation. Plaintiff’s version was supported by the club manager who witnessed the affray.
Upon appeal defendant asserts there was insufficient evidence upon which to submit the issue of punitive damages to the jury. Punitive damages are imposed by way of punishing a defendant for malicious or vindictive acts or for a willful and wanton invasion of plaintiff’s rights, the purpose being to restrain him and deter others from the commission of like wrongs (Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149). The problem is the application of the rule to given facts. Defendant’s argument here of insufficiency of evidence is based upon his version of the facts— that he was simply defending his wife and himself from an aggressor and should not have been subject to punitive damages. If on appellate review we were permitted to adopt defendant’s version of the affair, then we might agree with his contention, but we are not at liberty to substitute our judgment for that of the jury. Under all the evidence a jury question was presented and it became the jury’s responsibility to determine whether defendant acted with reasonable justification or excuse or whether he was acting wantonly and maliciously in wreaking his private vengeance.
Defendant complains of the trial corut’s failure to give a requested instruction further defining the measure of damages to be applied in determining the amount of punitive damages. The instruction given by the court on the subject was that found at PIK 9.44. The instruction requested was simply an enlargement thereof, and, although it would not have been improper to give such an instruction, we cannot say it was so vital that the failure to give it constituted reversible error.
Defendant also complains of the trial court’s failure to give an instruction defining one’s right to recover his property from a trespasser. There was no request for such an instruction at trial, and indeed it would hardly have been appropriate under defendant’s own version of events. Both defendant and his wife testified the first thing defendant did, prior to the time any blows were struck, was to remove the ignition key from the truck, thus effectively securing his property. Defendant was afforded the benefit of an instruction on one’s right to act in self-defense or in defense of his wife — the only matter offered by him at the trial by way of excuse or justification — but the jury obviously rejected this theory of the case.
Defendant complains in two respects of plaintiff’s closing summation to the jury. Plaintiff’s counsel commented on an objection to evidence successfully interposed during the trial by defendant’s counsel. Objection was immediately made to counsel’s comment, the trial court promptly sustained the objection and admonished the jury to disregard the comment. We think the trial court’s ruling adequately disposed of the impropriety. We have examined the other argument complained of, which was unobjected to at the time, but are unable to discern anything approaching reversible error.
Beyond these alleged trial errors, one matter remains, the amount of the verdict, said by defendant to be excessive. Compensatory damages of $1,500 were allowed. Defendant argues that inasmuch as this amount was twenty-six times the amount of plaintiff’s out-of-pocket expense ($57.50 medical and hospital) it was so out of proportion as to be excessive. We are aware of no formula prescribing any ratio of special damages to total compensatory damages. The evidence showed plaintiff was severely beaten on the face and head with some resultant pain. Nine stitches were required to close his wounds. At time of trial nearly three years later he had on his forehead a small scar and a small nodule. We cannot say the award for compensatory damages was excessive.
A majority of the court believes, however, in view of the nature and extent of the wrong under all the circumstances surrounding the incident, the award of $3,500 for punitive damages was so grossly excessive as to shock the conscience of the court (see Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192). Whether such is the case is always a difficult question, but we reach our conclusion upon consideration of the entire record, giving plaintiff due allowance for those disputed matters which the jury verdict resolved against defendant. The incident was the culmination of a two-day drinking spree during which plaintiff and defendant’s son used defendant’s truck for tavern-hopping at a time when defendant had expressed a need for the vehicle. At the precise time of the assault plaintiff, a complete stranger to defendant, was seated on the driver’s side of defendant’s truck. The monetary damage suffered by plaintiff, already set forth, was slight and his actual injury was minimal in nature. Considering all facts and circumstances under which the incident occurred, and the nature and extent of injury, and the cause thereof, we conclude the verdict for punitive damages was too large by $1,500 and should be reduced by that amount, and it is accordingly so ordered. The judgment for compensatory damages for $1,500 is approved; that for punitive damages is reduced from $3,500 to $2,000 and, as so modified, is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the defendant, Ronald W. Hill, from an order sustaining plaintiff’s motion for partial summary judgment as to certain issues adjudicated in a prior trial between plaintiff’s husband and the defendant which resulted in a general verdict for the husband.
The plaintiff, Helen M. Adamson, died during the pendency of this appeal, and her husband, Alex A. Adamson, has been substituted in her stead. For clarity, however, Mrs. Adamson will continue to be referred to as plaintiff or wife throughout this opinion.
On June 12, 1964, Mrs. Adamson was a passenger in an automobile driven by her husband. Both sustained personal injuries when their automobile was involved in a collision with one driven by the defendant. The Adamsons filed their joint petition for damages, alleging the collision was caused by defendant’s negligence. Defendant filed separate answers to each claim and demanded separate jury trials. In each answer defendant denied he was negligent and alleged as an affirmative defense the collision was caused by the negligence of Mr. Adamson; as to the claim of Mrs. Adamson, defendant alleged she was contributorily negligent in failing to keep a proper lookout for her own safety. At a pretrial conference counsel for the Adamsons elected to proceed to trial on the husband’s claim, and with leave of the court, the husband filed an amended petition. It is agreed that the claims of Mr. and Mrs. Adamson were thereafter treated as separate and distinct cases.
Subsequently, Mr. Adamson’s case was tried, but the jury was unable to agree on a verdict, and was discharged. A second trial resulted in a general verdict for the husband, and the judgment entered thereon was satisfied.
Mrs. Adamson then filed a motion for partial summary judgment, contending that the issue of defendant’s negligence and her husband’s contributory negligence had been determined adversely to defendant in the prior trial; that the matter was res judicata and not subject to relitigation.
In sustaining the plaintiff’s motion, the trial court took judicial notice of the proceedings in the husband’s case and found that the general verdict in favor of the husband resolved all issues relating to the negligence of both drivers, as well as causation, and the principle of res judicata precluded relitigation of those issues. Thereupon, the court entered judgment in plaintiff’s favor, finding that defendant was negligent, which negligence was the proximate cause of the collision between the two vehicles. In a letter to the attorneys, the trial judge made clear the only issues remaining for trial in Mrs. Adamson’s case were (1) her contributory negligence as a passenger, (2) what injuries she sustained as a proximate result of the collision, and (3) the amount of damages.
Defendant contends that the prior judgment is in no way binding or conclusive on him in the present case, and that he is entitled to a trial on all issues, including the issue of his own negligence. The plaintiff, on the other hand, urges that although she was not a party to the litigation in her husband’s case, she is nevertheless entitled to the benefit of the judgment adjudicating defendant’s negligence and proximate cause. Of course, the issue of plaintiff’s contributory negligence remains to be determined even if the trial court’s ruling is sustained.
Thus, the question posed is whether or not a judgment for a plaintiff in an earlier action is res judicata, or conclusive, as to the issues of negligence and contributory negligence of the respective drivers in a subsequent action growing out of the same accident by a different plaintiff against the same defendant.
Defendant seeks to support his position by relying on the general rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action. This in turn is based upon the doctrine of mutuality of estoppel; that is, a litigant can invoke the conclusive effect of the prior judgment only if he would have been bound by it had it gone the other way. (1R Moore’s Federal Practice § 0.412; James Civil Procedure [1965 Ed.] § 11.31; “Mutuality and Conclusiveness of Judgments,” 35 Tulane, L. R. 301; 30A Am. Jur., Judgments § 392; 50 C. J. S., Judgments § 765.) More simply stated, the requirement of mutuality means that unless both parties are bound by the prior judgment, neither may use it against the other in a subsequent action. (See, B. R. DeWitt, Inc. v. Hall, 19 N. Y. 2d 141, 278 N. Y. S. 2d 596.)
The Restatement expresses the mutuality requirement in language to the effect that a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action. (Restatement of Judgments § 93.)
Situations in which the doctrine of mutuality operates to prevent a litigant from invoking the conclusive effect of a prior judgment usually involve, in a technical sense, principles of collateral estoppel rather than res judicata. The distinction was noted in Lawlor v. National Screen Service, 349 U. S. 322, 99 L. Ed. 1122, 75 S. Ct. 865:
“. . . [U]nder the doctrine of res judicata, a judgment ‘on the merits’ in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. . . (p. 326.)
As applied to the facts in the instant case, the requirement of mutuality would preclude plaintiff, a stranger to her husband’s case, from asserting against the defendant the prior judgment relating to the issues of the respective drivers’ negligence and causation, because she was not a party to that suit, and further, she would not have been bound had the judgment in the prior case gone the other way and exonerated the defendant from liability.
The majority of courts throughout the country recognize and apply tire doctrine of mutuality, subject to certain exceptions not germane to the factual situation here. (30A Am. Jur., Judgments §392; 50 C.J.S., Judgments §765; Annos. 133 A.L.R. 181, 23 A. L. R. 2d 710.) Indicative of this conclusion, and especially apropos to the instant case, is the statement by the author of the annotation appearing in 23 A. L. R. 2d 710,717:
“Most courts of last resort which, have considered the question have continued to hold, in conformity with the rule announced in the earlier annotation [133 A. L. R. 181, 185], that a judgment for the plaintiff in an action growing out of an accident was not res judicata, or conclusive, as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident, by a different plaintiff against the same defendant.”
The plaintiff here seeks to uphold the lower court’s ruling on the basis of the so-called Bernhard doctrine enunciated in Bernhard v. Bank of America, 19 Cal. 2d 807, 122 P. 2d 892, in which the court, in effect, renounced the traditional concept of mutuality of estoppel and confined the requirement of privity to the party against whom the plea of res judicata is asserted. The import of the decision is that where there is identity of issues between two suits, a party against whom judgment has been rendered in one suit is bound thereby in the other suit, even though his adversary who invokes the prior adjudication was not a party or privy to the suit in which the judgment was rendered,' and would not have been bound had the judgment gone the other way. In the opinion, Justice Traynor stated:
“The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. . . . There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.
“In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? . . .” (pp. 811-813.) (Emphasis added.)
The trial judge, in his memorandum opinion in the instant case, posed the three questions set forth in Bernhard, answered them affirmatively, and held the plea of res judicata, or more properly, collateral estoppel, could be invoked against the defendant.
It is interesting to note that even under the Bernhard doctrine plaintiff would not have been bound by a judgment in favor of defendant in the prior action, because plaintiff, being the party against whom the plea was being asserted, had not had her day in court.
We find that several other jurisdictions have voiced dissatisfaction with the requirement of mutuality and embraced the Bernhard doctrine (e. g., Israel v. Wood Dolson Co., 1 N. Y. 2d 116, 134 N. E. 2d 97; B. R. DeWitt, Inc. v. Hall, supra; Sanderson v. Balfour,_ N. H._, 247 A. 2d 185; United States v. United Air Lines, Inc., 216 F. Supp. 709 [D. Nev. 1962], affirmed and opinion adopted in United Air Lines, Inc. v. Wiener, 335 F. 2d 379 [9th Cir. 1964], cert. dismissed 379 U. S. 951, 13 L. Ed. 2d 549, 85 S. Ct. 452; State of Maryland v. Capital Airlines, Inc., 267 F. Supp. 298 [D. Md. 1967]).
In actual practice, despite the broad terms in which the Bernhard doctrine was expressed by Justice Traynor, it for the most part has been used defensively by one not a party to the first action against one who was a party to the first action and had his day in court upon the issues which the judgment decided, rather than applied affirmatively to establish negligence in favor of a nonparty to the previous litigation, such as in the instant case. (Sanderson v. Balfour, supra. Also, see, “Mutuality and Conclusiveness of Judgments,” 35 Tulane L. R. 301, 307; 1R Moore’s Federal Practice § 0.412 [1] p. 1807; James Civil Procedure [1965 Ed.] § 11.34, p. 601. Contra, B. R. DeWitt, Inc. v. Hall, supra; State of Maryland v. Capital Airlines, Inc., supra.) In other words, the courts are more inclined to permit use of the doctrine as a “shield” by one not a party to the first action, but not as a “sword.”
The recent case of Spettigue v. Mahoney, 8 Ariz. App. 281, 445 P. 2d 557, involved a similar factual situation as here in which the plaintiffs, who were not parties or privy to prior litigation which resulted in a judgment against the defendant, sought the benefit of the adjudication of negligence and proximate cause rendered in the first action, against the same defendant. The affirmative application of the Bernhard doctrine to establish negligence in favor of non-parties to previous litigation was thoroughly discussed in the court’s opinion. The reasoning of the Arizona court, in rejecting plaintiffs’ request to so apply the doctrine, appears sound to us. The unfairness of the doctrine when applied offensively is emphasized in the following language:
“. . . If the Bernhard doctrine can be used offensively, then it is to a plaintiff’s advantage, when there are several persons injured in a single accident, to use his superior powers to keep his claim out of the legal arena until there has been another plaintiff’s judgment arising out of the same events.
“. . . We are reluctant to adopt a rule which would incline a plaintiff to maneuver to advance on the calendar another plaintiff’s case with more jury-appeal rather than seek consolidation with other plaintiffs to determine liability. . . .” (pp___)
The basic unfairness is demonstrated even more when the doctrine is applied to a situation where a great number of passengers are injured or killed in an airplane crash. Under such circumstances, the defendant airline, deprived of the protection afforded by the doctrine of mutuality, would be in the unenviable position of having to win each suit against it by defending on the merits, since judgment against one plaintiff would not bar another; but if the defendant lost one suit on the merits, it would be precluded from defending on the merits all other suits against it which had not yet proceeded to judgment. Further, we are unimpressed with the argument advanced by some proponents of the doctrine that its application will serve the public interest by minimizing litigation. (See, State of Maryland v. Capital Airlines, Inc., supra; “Mutuality and Conclusiveness of Judgments,” 35 Tulane L. R. 301, 310, 311; IB Moore’s Federal Practice §0.412 [1]; James Civil Procedure [1965 Ed.] §11.34.)
In a factual situation such as is presented here we find no compelling reason to depart from our prior law. We have long followed the rule that an issue is res judicata only when there is a concurrence of four conditions, namely, (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. (McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 306 P. 2d 175; Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 271 P. 2d 267; Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P. 2d 115; Atchison & Eastern Bridge Co. v. Atchison County Comm’rs, 150 Kan. 24, 91 P. 2d 34; Rea v. Telephone Co., 88 Kan. 82, 127 Pac. 603.) Inherent in the above rule is the requirement of mutuality discussed earlier in the opinion. With respect to persons in whose favor or against whom the doctrine of res judicata is applicable, a former adjudication is binding only on parties in the proceedings in which it is rendered, and their privies. (Wharton v. Zenger, 163 Kan. 745, 186 P. 2d 287; Wear v. Wear, 130 Kan. 205, 285 Pac. 606, 72 A. L. R. 425. Also, see, Hofstetter v. Myers Construction, Inc., supra.) The doctrine does not operate to affect strangers to the judgment, that is, those who, like the plaintiff, were neither a party nor privy to a party in the litigation. Thus, a stranger is not precluded from maintaining an action, although the issues therein were determined in a prior judgment in favor of the same defendant. (Richardson v. Erwin, 174 Kan. 314, 255 P. 2d 641.) Neither can the stranger claim the benefit of such judgment had it gone the other way.
We hold that the plaintiff herein is not entitled to the benefit of the adjudication of defendant’s negligence and proximate cause in her husband’s case. The prior judgment is in no way binding or conclusive, and the parties in the present action are entitled to a trial on all issues.
The judgment of the lower court is reversed and the case remanded 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
Price, C. J.:
Defendant appeals from a conviction of robbery in the first degree as defined by K. S. A. 21-527.
No contention is made as to the sufficiency of the evidence to sustain the conviction. A detailed recital of the facts is therefore unnecessary.
In brief — defendant was positively identified as the man who held up two cashiers of a supermarket and robbed them of approximately $500.00. One of the eye-witnesses was a nephew of one Bennett— at whose home defendant had been staying for a week or two. Apparently “things were getting pretty hot” — and defendant and Bennett shortly departed for Oklahoma. At the time of the robbery defendant was wearing black trousers and a white T-shirt. When he departed for Oklahoma he left the pants and shirt in a closet at the Bennett house. During their investigation police officers went to the Bennett home. Mrs. Bennett gave the pants and shirt to them.
Only two contentions are made in this appeal.
The first concerns the panel of jurors in attendance — and it is argued defendant’s “challenge to the array” was erroneously overruled.
The basis of this contention is two-fold.
It appears that of the list of jurors regularly summoned for duty several were excused beforehand by the court for health, family or hardship reasons. It also appears that nine or ten were excused by the bailiff over the telephone for like reasons.
K. S. A. 43-118, being a general statute relating to jurors, provides that any person may be excused from serving on a jury when it shall appear to the court that the interests of such juror or those of the public will be materially injured by his attendance, or when the state of his own health or that of any member of his family requires his absence.
K. S. A. 43-154, relating to the drawing, summoning and attendance of jurors in Sedgwick county, provides in subsection (1) thereof that—
“Jurors shall appear on the day and time summoned before the judge of the court designated in the summons, and such judge shall determine all excuses of such persons from jury service according to the best interest of the public, and the individual or his family. Those not excused shall be retained as the panel for said division of the court.”
While K. S. A. 20-312, a general statute relating to the duties of a bailiff — and K. S. A. 1968 Supp. 20-614a, relating to the duties of a bailiff in a county the size of Sedgwick — authorize and empower a bailiff to perform and carry out all duties which may be required of him by the judge — no where in the statutes does it appear that a bailiff is authorized to excuse jurors summoned for duty or that the judge may delegate such authority to him. Defendant argues that the excusing of jurors is strictly a judicial function which can be performed only by the judge and that because of the procedure shown here the end result amounted to more than a mere “irregularity” and that his challenge to the array was erroneously denied, citing The State v. Jenkins, 32 Kan. 477, 4 Pac. 809.
As a practical matter we venture to say that there have been instances in perhaps every judicial district in this state in which prospective jurors have been excused from reporting by the bailiff or court reporter — all with the approval of the judge. In a strict technical sense, however, we agree with defendant’s contention that the excusing of jurors is a judicial function to be exercised only by the judge. Notwithstanding our disapproval of the practice shown here — it does not necessarily follow that the challenge to the array was well taken. In the Jenkins case, above, jurors were selected from sources other than authorized by statute, and the case is not in point. Here, all jurors remaining on the panel — having been selected as provided by statute — were qualified to serve. Furthermore, there is absolutely nothing in the record to indicate that in the selection of the jury to try this case defendant was in any way prejudiced by the fact that a few of those summoned had been excused by the bailiff — all of which was approved by the judge. Under the facts shown the matter amounted to no more than an irregularity and constituted no ground on which to challenge the array (State v. Snyder, 126 Kan. 582, 584, 270 Pac. 590; opinion denying a rehearing, 127 Kan. 7, 272 Pac. 169). K. S. A. 62-1718 provides that on appeal this court must render judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. As to this point — the challenge to the array was properly denied.
K. S. A. 43-154 provides that in a county the size of Sedgwick the names of prospective jurors are taken from the bound volumes of the personal property assessment rolls of the county. The record shows that for the year in question there were approximately 114 bound volumes containing the names of persons owning taxable personal property such as automobiles — and the like. There were approximately 20 bound volumes containing the names of persons who owned no taxable personal property. Defendant is a negro, and con tends the drawing of names from only those lists of persons owning taxable personal property directly results in the exclusion of many negroes from jury service — the argument being that a lower percentage of negroes own automobiles or other taxable personal property than white persons. The record is silent as to whether any of those excused by the court or bailiff were negroes. There were no negroes on the remaining panel.
Defendant’s contention on this point — which consists of only his bald assertion — cannot be sustained. The lists of persons in question — both taxable and nontaxable — are prepared without regard to race. The record contains nothing even remotely to indicate that negroes are disproportionately represented in the lists of personal property taxpayers. Systematic or purposeful exclusion of members of a race from jury service may not merely be assumed or asserted— it must be established by proof. The question was discussed briefly in State v. Woods, 191 Kan. 433, 381 P. 2d 533, cert. den. 376 U. S. 919, 84 S. Ct. 676, 11 L. ed 2d 615. Later, Woods sought relief by federal habeas corpus, and, in denying relief, the Circuit Court of Appeals (10th Circuit) said—
“. . . a negro defendant in a criminal case is not constitutionally entitled to be tried by a jury upon which there is a member, or members, of his race, and he is entitled to relief only upon proof submitted by him which discloses a purposeful discrimination’ to exclude members of a class from the jury panel.” (p. 950) Woods v. Munns, 347 F. 2d 948 (1965).
See also State v. Palmer, 173 Kan. 560, 570, 251 P. 2d 225 and State v. Lopez, 182 Kan. 46, 50, 51, 318 P. 2d 662. As to this point the challenge to the array likewise was properly denied.
Defendant’s other contention is that the pair of black pants and the white T-shirt which he had left in the closet of the Bennett home and which were turned over to the police by Mrs. Bennett — were erroneously admitted in evidence. When they went to the Bennett home the officers had no search warrant, and it is contended the incident amounted to an illegal search and seizure and therefore the property so “seized” was inadmissible in evidence.
In passing, it should be stated that during the robbery when defendant was placing a pistol back in his pants pocket it was accidentally discharged — in the pocket. At the trial it was established by expert testimony that a hole in the pocket was made by a bullet fired from the inside.
There are at least two reasons why defendant’s contention as to this matter cannot be sustained.
In the first place the record does not establish there was a “search and seizure.” The pants and shirt were voluntarily turned over to the officers by Mrs. Bennett.
Secondly — the status of defendant at the Bennett home was — at most — merely that of a “guest” — a relationship which he had in fact abandoned by fleeing to Oklahoma. He had absolutely no possessory interest in the premises. In Wheeler v. State, 202 Kan. 134, 446 P. 2d 777, it was held:
“One who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure.” (Syl. 1.)
See also State v. Edwards, 197 Kan. 146, 415 P. 2d 231.
We find no error in the record. Defendant’s motion for a new trial was properly overruled. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from the judgment of the district court of Montgomery County sentencing the defendant, Ellis Jamerson, to life imprisonment. Mr. Jamerson was charged with burglary and larceny, his case was tried to a jury, and he was found guilty of both oifenses. Prior to sentence, evidence of two prior convictions was introduced, and the sentence was pronounced under the Habitual Criminal Act.
In brief, the state’s evidence showed that about 3:15 a. m. on March 30, 1967, a police officer of the city of Independence, Kansas, saw a man come from the east side of Crawford’s Truck Stop and go behind some rental trailers. Another officer was promptly summoned, and the two officers soon found the defendant lying in a field adjoining the Truck Stop, with a tool lying beside him, and with a small metal coin box in his possession containing $38.65 in change.
Investigation revealed that the glass in the front door of Crawford’s Truck Stop had been broken and the building had been entered. A cigarette vending machine inside the building had been pried open, and the coin box had been removed therefrom. The coin box found in the defendant’s possession was identified as the one taken from the cigarette machine.
Following his apprehension, and after a Miranda warning, the defendant orally admitted guilt. His transcribed statement was admitted in evidence over an objection that the statement had been secured through threats.
The defendant’s primary complaint is that evidence was admitted during the state’s case in chief, showing that he had been convicted, in 1947, of burglary and larceny. It is first claimed that this conviction was too remote in time to have had probative value. The contention cannot be sustained. This court has often held that the weight to be given evidence of this character, when admissible, is for the jury to determine.
In State v. Caton, 134 Kan. 128, 131, 4 P. 2d 677, it was said:
“. . . This court has repeatedly held that if the evidence is otherwise admissible it is of no consequence whether the similar offense occurred prior or subsequent to the offense with which the defendant is charged. The time of the similar offense and its relation to the offense charged goes only to tire weight of the evidence. (State v. King, 111 Kan. 140, 206 Pac. 883; State v. Wahl, 118 Kan. 771, 236 Pac. 652.)”
This rule has been followed consistently to the present time. (Among recent cases, see State v. Wright, 194 Kan. 271, 276, 398 P. 2d 339; State v. Poulos, 196 Kan. 287, 292, 411 P. 2d 689; State v. Darling, 197 Kan. 471, 478, 419 P. 2d 836.) Our decision in State v. Fannan, 167 Kan. 723, 207 P. 2d 1176 is illustrative. In that case, the defendant was charged with burglary and larceny. Evidence was admitted to show two prior convictions of robbery, one having occurred ten, and the other seventeen years earlier. This court, in upholding the admission of that evidence said, on page 727:
“. . . If previous crime or conduct has a natural and logical tendency to establish the crime, or an element of the crime, for which the defendant is on trial, the evidence is admissible and ought to be admitted, as this court has many times held. Moreover, mere remoteness in time affects the weight to be given such evidence, rather than its admissibility. The question is — did the evidence tend to prove guilty knowledge? . . .”
It is next argued that the prior offenses are not shown to have been similar to those presently charged. We find no merit in this contention. The record reflects that the former conviction was on charges of burglary in the nighttime and larceny connected therewith. Those charges are identical in kind to those on which the defendant was tried in the instant case.
We think it readily apparent that the former offenses were sufficiently similar to those charged here to have probative bearing on such matters as intent, knowledge, plan and preparation. Particularly would this seem to be so where, as here, a major part of the defense was predicated on lack of mental capacity. Among other cases in which prior offenses have been admitted on the basis of similarity, see State v. Fannan, supra, State v. W. H. France, 146 Kan. 651, 72 P. 2d 1001; State v. Marr, 136 Kan. 602, 16 P. 2d 469; State v. Peasley, 179 Kan. 314, 295 P. 2d 627; State v. Stephenson, 191 Kan. 424, 381 P. 2d 335; State v. Jerrel, 200 Kan. 415, 436 P. 2d 973. Moreover, we said in State v. Wright, supra, that our statute, K. S. A. 60-455, does not require the evidence of former convictions to show the offenses to have been identical in nature; it is sufficient if they are similar.
The final objection made to the admission of the evidence of prior convictions is that the judgments of conviction were based on a verdict of guilty returned by a jury, rather than on a plea of guilty entered by the defendant. This exact point has not heretofore been raised before this court, and our limited research has disclosed very little authority elsewhere.
It is, however, the prevailing view in the great majority of jurisdictions that where proof of a similar offense is admissible, proof of its commission may be made by proving a conviction therefor. (22A C. J. S., Criminal Law, § 690, p. 793.) In such a case it has been said that proof of a conviction stands on the same footing as original evidence of the commission of the offense to which the conviction relates. (People v. Formato, 286 App. Div. 357, 143 N. Y. S. 2d 205, 64 A. L. R. 2d 812.)
In most of the authorities we have found, the rule is simply stated that where evidence of a similar offense is admissible to show intent, plan, etc., the record of the defendant’s conviction thereof is admissible in evidence to establish the offense. (2 Wharton’s Criminal Evidence, Twelfth Ed., § 634, p. 525; State v. Wright, supra; State v. Neagle, 65 Me. 468; World v. State, 50 Md. 49.)
Although it is impossible to ascertain, from the facts set out in most opinions, whether the former conviction was based upon a verdict of guilty or on a plea, we may point to People v. Peete, 28 C. 2d 306, 169 P. 2d 924, as one exception. In that case the defendant was charged with murder, and the trial court admitted into evidence, for the purpose of proving a similar offense, the record of a former conviction of murder based on a jury’s finding of guilty. In upholding the admission of this evidence as relevant to show scheme and plan, the California court said that where a judgment of conviction has been entered in a criminal case, the record thereof establishes the previous conviction beyond dispute.
We believe the distinction which the defendant seeks to draw between a conviction based on a verdict of guilty and a conviction based on a plea of guilty is without substance. It is our view that an adjudication of guilt by twelve fair and impartial jurors, as our judicial system requires, is evidence of a substantial character to show the commission of a similar offense. No authority has been cited which would impugn this view. Accordingly, we hold the evidence was properly admitted.
The defendant’s final point relates to the trial court’s instruction on the issue of insanity, which was raised at the trial. We have carefully examined the instruction which was given and find it is closely patterned after the instructions approved by us in State v. McBride, 170 Kan. 377, 226 P. 2d 246, and State v. Andrews, 187 Kan. 458, 357 P. 2d 739. This court many years ago became committed to the so-called M’Naghten rule, which formulates the “right and wrong” test for measuring criminal responsibility.
The defendant’s actual quarrel is more with the test of mental capacity to which this court has long adhered, than with the phraseology of the court’s instruction. For reasons we deem sufficient, and which will be apparent to anyone who reads our opinion in Andrews, we decline to depart from our established rule.
We have carefully studied the record before us, and find no error. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of second degree burglary and grand larceny, and the resulting judgment and sentences.
We note the facts in the order of their occurrence.
On December 9, 1966, the Troug & Nichols Company of Lenexa, Kansas, was burglarized. In the early evening of December 13, the defendant, Ivon Yates, and Gerald Manley, under the assumed names of Richard Kerns and Jack Moore respectively, rented a two story house at 1026 Barnett, Kansas City, Kansas, from Jimmy Dye and his brother-in-law. The defendant, alias Richard Kerns, paid $80.00 in cash for a month’s rent.
During the late evening of December 13, the home of Gene Martin at 9115 Somerset Drive, Overland Park, Kansas, was burglarized. A Motorola console stereo, a portable television set and other articles were taken.
On the morning of December 14, 1966, Jimmy Dye and his brother-in-law were at the rented house changing the lock on the front door when the defendant and Gerald Manley arrived. The articles of furniture which were stolen from the home of Gene Martin were in the house but they were not so identified until later. These were the only furnishings in the house except a refrigerator and stove which were furnished by the landlords. The defendant played the stereo for ten or fifteen minutes and then he and Manley left. They did not again return to the rented house.
On December 16, 1966, the defendant and Manley were arrested on the charge of burglarizing Troug & Nichols Company on December 9, 1966. The investigating officers of the Johnson County’s sheriff’s office had reason to believe that the same parties had burglarized both the Troug & Nichols Company and the Martin residence in Overland Park. On the morning of December 21, 1966, they learned that the defendant and Manley had rented the house at 1026 Barnett, Kansas City, Kansas. The Overland Park police department was then contacted.
It was arranged that a detective from the Overland Park police department would go to the rented house at 1026 Barnett with the victim Martin and make a preliminary investigation for the purpose of justifying a search warrant. They felt that the information which they had was not sufficient for that purpose. Between 11:00 a. m. and 11:30 a. m. the detective and Martin went upon the front porch of the rented house and knocked on the door. There was no response. They looked through the glass of the front door and Martin recognized the stereo console which had been stolen from his residence. The detective then called the sheriffs office. A search and seizure warrant was obtained, served on one of the landlords who unlocked the premises and all of the stolen property was taken by the law enforcement officers.
The defendant was then charged with the theft of the property from the Martin residence and the convictions of burglary in the second degree and grand larceny resulted.
The defendant has appealed to this court raising several alleged trial errors.
The appellant first objects to the refusal of the trial court to suppress all evidence gained from, what he calls, the unreasonable search of the rented house referred to by him as his home.
The appellee suggests that neither the appellant nor his co-tenant had ever lived in the rented house and therefore the building does not fall within the term “houses” as that term is used in the Fourth Amendment to the Constitution of the United States prohibiting unreasonable search. It cannot be determined from the evidence whether the appellant and his accomplice intended to make the rented residence their home after furnishing it with stolen property or whether they intended to use it simply as a cache for stolen property. We cannot say that the building was not such as would be protected by the constitutional restrictions from unreasonable search. However, we are not ready to say that the preliminary investigation, such as was made under the facts and circumstances related, was an unreasonable search.
The Fourth Amendment to the Constitution of the United States reads:
“The right of the people to he secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Kansas Constitution, Section 15 of the Bill of Rights, states:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.”
It cannot be said that any unreasonable search was made of the premises in question. Certainly the officer had a right to go upon the front porch of the house which was facing a public street in a preliminary investigation before obtaining a search warrant. Investigating officrs must be given the right to inquire as to the occupancy of a budding and whether or not they will be admitted. For us to hold otherwise would completely tie the hands of our police officers investigating a crime in a community.
It is not an unreasonable search for an investigating officer to approach a door and knock for the purpose of making inquiry. There is no indication in this case that the officer intended to enter the house without permission. Once at the door and knocking, the officer was not required to close his eyes for fear he might see evidence of burglary. Mere observation does not constitute a search.
The appellant relies on Haerr v. United States, 240 F. 2d 533, which states:
“A search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest. 79 C. J. S., Searches and Seizures, § 1. Stopping the automobile in quest of aliens was the duty of the Border Patrol, and it was a part of the performance of this duty to look into the automobile. Mere observation, however, does not constitute a search. United States v. Lee, 1926, 274 U. S. 559, 47 S. Ct. 746, 71 L. Ed. 1202; Ellison v. United States, D. C. Cir. 1953, 206 F. 2d 476; United States v. Strickland, D. C. S.C. 1945, 62 F. Supp. 468.” (p. 535. Emphasis supplied.)
We are in complete accord with the statement in the Haerr opinion. In State v. Blood, 190 Kan. 812, 378 P. 2d 548, we stated at page 819 of the opinion:
“. . . It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. (See, McDonald v. United States [1948], 335 U. S. 451, 93 L. Ed. 153, 69 S. Ct. 191.) Observation of that which is in plain view is not a search. (State v. Campbell [Mo. 1953], 262 S. W. 2d 5; State v. Hawkins [1951], 362 Mo. 152, 240 S. W. 2d 688; and State v. Harre [Mo. 1955], 280 S. W. 2d 41.)”
After some of the stolen property was observed through the glass in the front door, a search and seizure warrant was obtained before the property was taken. We must conclude that evidence of the possession of the stolen property was properly received.
The appellant contends that the search and seizure warrant was invalid because it was signed by the clerk of the magistrate court. Our attention is called to K. S. A. 62-1828, which provides:
“A search warrant authorized by this act may be issued by any magistrate or judge authorized to issue process for the apprehension of offenders against the laws of this state.”
We also note K. S. A. 62-1830, which reads in part:
“A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. . . .”
It would appear that i£ the magistrate directs the issuance of a search and seizure warrant after finding probable cause, the warrant should not be invalidated because it is signed by the cleric rather than the judge who directed its issuance. However, we see no valid reason why officials should not follow suggested forms placed in the statute for their guidance and thus avoid such controversies as we now have before us. (See K. S. A. 62-1831.)
The appellant also suggests that the warrant should be held illegal because the record does not show the requisite affidavit or testimony.
Neither does the record show that there was not an affidavit or testimony presented to the magistrate. In State v. Emory, 193 Kan. 52, 391 P. 2d 1013, it is stated at page 54 of the opinion:
“The general rule is that one who seeks affirmative relief on the ground that officers violated his constitutional rights in making a search has the burden of establishing facts from which it will affirmatively appear that his rights were invaded. Thus, one seeking to impeach a search warrant has the burden of establishing the matters complained of. If the search warrant is regular on its face, it will be presumed that the officer discharged his duty in issuing it, and this raises a prima facie presumption as to the sufficiency of the affidavit; if the accused relies on the insufficiency or invalidity of either the affidavit or the warrant, he has the burden of proving it. (79 C. J. S., Searches and Seizures, § 98, pp. 917, 918; Ludwig v. State, Okl. Cr. 259 P. 2d 322.)”
The appellant further objects to the fact that stolen goods were taken from the rented premises which were not included in the search and seizure warrant.
We find no merit in the objection. An officer, while making a legal search pursuant to a search and seizure warrant, may lawfully seize other stolen goods found on the premises not mentioned in the search warrant. (79 C. J. S., Searches and Seizures, § 83e, p. 903.)
A careful examination of the record discloses no vital errors in connection with the search and seizure warrant.
The appellant next suggests that the trial court committed reversible error by admitting evidence of prior convictions.
The evidence revealed that the appellant had two prior convictions of burglary and two prior convictions of grand larceny in the state of Missouri in 1963. These crimes are similar to those for which the appellant was being prosecuted.
The appellant concedes that under the provisions of K. S. A. 60-455 evidence of prior similar crimes may be introduced, when relevant, for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. He suggests, however, that the statute represents the exception and not the rule and should be strictly construed and carefully employed. Appellant specifically suggests that crimes committed in 1963 would have no relevancy to similar crimes committed in 1966.
We are unable to agree with appellant’s contention. We are not informed as to how much of the intervening time between the crimes in 1963 and 1966 was spent in the penitentiary where the appellant had no opportunity to commit robbery or burglary. Be that as it may, there can be no hard and fast rule laid down by which it can be determined when evidence of prior crimes becomes irrelevant because of intervening time. This is a matter which must be left largely to the discretion of the trial court. We find no abuse of discretion under the facts and circumstances presented in this case.
The appellant objects to the prosecutor referring to him as a “petty thief” during the closing argument and the failure of the trial court to instruct the jury to disregard the reference.
Again we find no merit in the contention, although we do not wish to encourage name calling by a prosecuting attorney. We note appellant’s suggestion that this court has held that the abuse of a defendant by referring to matters not in evidence constitutes prejudicial error. (State v. Ryan, 141 Kan. 549, 42 P. 2d 591.) We would adhere to that rule. However, there was ample evidence before the jury in this case to brand the appellant as a thief. There was not only the evidence of the thievery in the case being prosecuted but there was also evidence of two prior convictions of burglary and larceny. We cannot say that the prosecutor’s argument went outside the evidence.
The appellant, as a finale, objects to the trial court’s instruction as to the presumption arising from the possession of stolen property.
The instruction stated in part:
“. . . You are instructed that possession of stolen property shortly after it is stolen is prima facie evidence that the possessor is the thief, . . .”
The appellant contends that the term “possession of stolen propperty shortly after it is stolen” is too vague for universal application. He states:
“. . . A presumption of guilt from mere possession is constitutionally impermissible since there is no reasonable connection between possession and knowledge that goods were stolen. Such a presumption, lacking a logical core, thereby violates due process.”
The appellant overlooks the fact that he has only to explain how he got possession and, when possession is properly explained, the presumption that he is the thief is removed. The instruction did further inform the jury that it was only when the possession was not satisfactorily explained that possession of recently stolen property would warrant a conviction.
The time element in this case can hardly be an issue.
The property was stolen the evening of the 13th of December, 1966, and the next morning, December 14, the landlord saw the stolen furniture in the rented house and the appellant showed his landlord how the stolen stereo worked, playing a record on the record player.
Objections similar to appellants were considered in connection with similar instructions and overruled in State v. Cone, 171 Kan. 344, 232 P. 2d 470 and State v. Jenkins, 197 Kan. 651, 421 P. 2d 33.
Whether or not the appellant had possession of the stolen property was a question for the jury and the jury was properly instructed that it “must find beyond a reasonable doubt that the defendant had possession” of the stolen property before the instruction would be applicable.
A careful review of the record discloses no trial errors which would justify the granting of a motion for a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action for personal injury based on maintenance of a nuisance upon land owned by the board of county commissioners of Crawford county, Kansas. In separate jury trials issues of liability and damages were determined favorably to plaintiff, who was four years of age at the time of his injury.
The pleadings in the case were largely superseded as a result of action taken at pretrial conference. There plaintiff elected to proceed on his action for damages upon the theory of nuisance in allowing a dangerous and unsafe condition to prevail upon two lots owned by defendant board in the town of Radley. Plaintiff withdrew his cause of action upon the basis of negligence or attractive nuisance as originally pleaded. The defendant raised the defense of governmental immunity and also denied existence of a nuisance and that any injury to plaintiff was caused by its maintenance of a nuisance.
The trial court by pretrial order ruled as a matter of law that governmental immunity was not a defense available to defendant and further that there was no issue as to contributory negligence of the child or parent. It was stipulated the defendant board had in 1942 purchased lots 6 and 7, the lots in question, at tax foreclosure sale and was thereafter record owner of the lots. Issues of fact for jury trial were determined to be whether a nuisance existed on property owned by the defendant, whether plaintiff sustained injury as a direct or proximate result of any nuisance found to exist, and the amount of any damages sustained by plaintiff.
As indicated, a jury found that a nuisance existed on May 2, 1965, the time of the incident in question, that the defendant board created, maintained or failed to abate a nuisance of which it had notice, and the nuisance was a direct cause of plaintiff's injury. Another jury determined the amount of plaintiff's damages, judgment was entered thereon, and defendant has now appealed.
The first question raised upon appeal, whether a county is liable for damages for creation or maintenance of a nuisance, has previously been before this court but it was unnecessary to a decision in any of those cases to determine that issue; again we give prior consideration to another aspect of the appeal.
Defendant board now contends, as it did at trial, that plaintiff’s evidence was insufficient as a matter of law to constitute a nuisance permitting recovery. We summarize plaintiff’s evidence. Billy Cherry, who lived in Radley with his wife and son Michael Gregg, testified as follows:
“In April of 1962, we began building our home in Radley, Kansas. Across the gravel street and directly east of our house are located lots 6 and 7. Each lot is 150 feet in depth and 50 or 60 feet wide. These lots are vacant. In April of 1962 both lots were covered with weeds, tin cans, wire, broken bottles and glass. The weeds covering most of the lots were as high as my head. I had been told that there was an abandoned well located on one of the two lots.
“In April of 1962, while employed by Crawford County in the highway department, I asked Joe Saia, one of the county commissioners, about cleaning up the debris on these lots directly east of my house and also I advised him about the well on the lots.
“During the month of April, 1962, I also talked to my supervisor, ‘Chuck’ Fedell and to Bill Niggeman, county engineer, about cleaning the lots.
“In February, 1965, the condition of the lots still existed and I took it upon myself to clean these lots. I started on lot 7, which is the corner lot directly across the road from my house. I cleared most of lot 7 of wild berry briars, wire, weeds, tin cans, and broken glass. By May 2, 1965, I had cleared most of lot 7 up to within a foot of the abandoned well. On May 2, 1965, the uncleared area of lot 7 and all of lot 6 was covered with weeds, five to six feet in height, tin cans, broken glass, and dilapidated pop cases, wire, dead trees and stumps. The area was inhabited by snakes, rats, and mosquitos.
“I did not discuss the condition of these lots with any county official, nor did I request that the lots be cleared, after the month of April, 1962. I did not know that Crawford County owned these lots until after May 2, 1965.
“During February, March and April, 1965, while I was working clearing lot 7, my son, Michael Greg Cherry, who was then four years old, on several occasions came onto the lot to watch me work. On these occasions he remained on the lot, with my knowledge, for periods of five, ten or fifteen minutes at a time. To the best of my knowledge, my children had not been upon the lots until I started to clear them.
“On the morning of May 2, 1965, I went over to lots 6 and 7 to continue the work of clearing the lots. Within a short time after I started work on the lots, I saw my son, Michael Greg Cherry, who was then on lot 6, at or near the edge of the abandoned well. I yelled at him and he turned around, and he took two real fast steps away from the abandoned well and fell. I heard the child scream and I went over and picked him up and saw that he had sustained a severe cut in the palm of his hand. When he fell, he struck his hand on a piece of broken glass.
“Several weeks after the injury to my son, I went to the Register of Deeds Office and was informed that the county owned these lots.”
The two lots over a period of twenty or twenty-five years were variously described by long-time residents of Radley as follows:
“. . . covered with trees, weeds, wire and debris. . . . have had a brushy covering for the past twenty-five years. When you walk by tire lots you can see refuse in the grass, old pop cases, cans and bottles. . . . had nothing on them but a lot of brush, tin cans, and trees. . . . covered with weeds, glass, tin cans and other debris.”
On behalf of defendant the county highway superintendent testified that in July, 1965, he investigated a reported abandoned well on a vacant lot in Radley; with other county employees he walked over lots 6 and 7 and found a depression which he determined to be the reported abandoned well; this depression was five and one-half feet long, three feet wide and twenty-two inches deep; the county employees filled the depression with a load of shale; the uncleared area of lots 6 and 7 was covered with weeds and sumac trees; there were a few cans and broken bottles.
In Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P. 2d 780, this court quoted approvingly the definition of a nuisance stated in Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474, as follows:
“. . . Nuisance means annoyance, and any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious, offensive odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another, may be said to be a nuisance. What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must, of necessity, depend upon particular facts and circumstances.” (pp. 143, 144.)
In Caywood this court reviewed many of our nuisance cases. Plaintiff here relies particularly upon three of them to sustain his contention the jury findings were sufficiently supported by the evidence. The first is Steifer v. City of Kansas City, supra, in which this court stated that a public dump which emits foul odors and smoke, from which trash is blown onto adjacent properties, and which remains a breeding ground for insects and rodents may be a nuisance. The action was by an owner of land adjacent to the dump and was one to abate the alleged nuisance and to recover damages arising from the maintenance of the nuisance.
Plaintiff cites Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P. 2d 621, 56 A. L. R. 2d 1409. Here a petition seeking damages for wrongful death alleged a hole was allowed to exist within the limits of a city in close proximity and adjacent to a city street; that it was eighteen feet deep and had been partly filled with debris while being used as a city dump so that there was formed across the top of it a crusty layer which gave the impression the hole had a solid substructure, when as a matter of fact the substructure was not solid but consisted of trash and stagnant water and was incapable of supporting any weight, and the three-year-old son of plaintiffs attempted to walk on it and was drowned. It was held the petition stated a cause of action based upon nuisance.
Plaintiff also relies on Morris v. City of Kansas City, 189 Kan. 52, 366 P. 2d 788, in which an inadequate and defective surface water drain, placed so as to dam up water and continuously flood neighboring houses and buildings during heavy rainfall, and not corrected during a period of more than one year, was held to be a nuisance.
Plaintiff argues that under the foregoing, as well as other decisions, his evidence presented a classic case of nuisance as defined by this court. Indeed, the case presents certain aspects of a nuisance; namely, debris, trash, glass, an abandoned well, insects and rodents, and, as stated by plaintiff, the lots could well be characterized as an “eyesore” to the community. But it must be kept in mind this is not an action to abate a nuisance damaging adjoining land or landowners in the use and enjoyment of their land — it is one for personal injury based on maintenance of a nuisance.
In all of our cases declaring liability for damages for creation or maintenance of a nuisance there has been causal connection between the things complained of — the nuisance — and the injury or damage, that is, a showing that the nuisance caused the damage. This has been true whether the injury was to adjacent property and its enjoyment as in Steifer and Morris, or to person as in Lehmkuhl. It is elemental the nuisance complained of must be the proximate cause of the injury and damage for which recovery is sought (39 Am. Jur., Nuisances, § 17; 66 C. J. S., Nuisances, § 8b).
What caused the injury to plaintiff here? We have already set forth all the evidence revealed by the record. The father yelled at his four-year-old son when he saw the boy at or near the edge of the abandoned well. The boy turned around and took “two real fast steps” away from the well and fell. In falling he struck his hand on a piece of broken glass, sustaining a severe cut in the palm of his hand. No other offensive condition of the premises, alleged to constitute the nuisance, is shown as causing or having any connection with the child’s injury. The evidence must be viewed in the light most favorable to plaintiff, giving him the benefit of every reasonable inference thereof. However, in determining causation we are unable to draw any inference more favorable to plaintiff than the simple facts stated. That the lots may have been maintained in a manner infringing upon the use and enjoyment of adjoining property is a factor too remote to constitute causation for plaintiff’s injury. Although proximity of the well must be considered in determining whether an actionable nuisance existed, the case presents a far different situation from that in Lehmkuhl where the latent dangerous condition constituting the nuisance directly caused injury. Here the injury was actually caused by plaintiff’s fall on a piece of glass near the well. In our opinion the conditions which caused injury would not, as a matter of law, be a nuisance. Plaintiff’s evidence therefore must be held insufficient to support the finding of nuisance.
The judgment is reversed.
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The opinion of the court was delivered by
Kaul, J.:
The defendant, Christie Laverne Kimmel, appeals from a conviction of robbery in the first degree (K. S. A. 21-527).
Defendant was arrested on October 7, 1966, and charged with the robbery of a service station attendant on October 6, 1966. He retained counsel and waived a preliminary hearing scheduled for October 27, 1966. An information was filed in the district court on November 14, 1966. On March 3, 1967, defendant failed to appear for a docket call in district court and a bench warrant for his arrest was issued. On August 4, 1967, defendant was apprehended and committed to the Wyandotte County jail. In September 1967 defendant’s trial was set for October 5. On October 2 counsel for defendant filed a motion for continuance, which was denied. On October 5 defendant’s former counsel withdrew and present counsel entered his appearance and requested a continuance, which was granted until October 23, 1967. After a request for a further con tinuance was denied on October 23, a trial by jury was commenced, ending with a verdict of guilty on October 25. Thereafter, defendant filed a motion for a new trial and an extension of time was granted to enable defendant to file a supplement to the motion — it was overruled on November 10. This appeal followed.
Defendant presents eight points which will be considered in the order presented.
For his first point, defendant claims error in the trial courts refusal to grant a further continuance on October 23, the date set for trial. As we have noted, defendant was granted a continuance on October 5 and that more than one year had elapsed since defendant was arrested and charged. Obviously, defendant had adequate time to prepare his defense. Defendant further complains the trial court erred in denying his request for a commission to take depositions of witnesses residing in the State of Missouri or in the alternative a continuance to take their depositions. The record discloses that on interrogation by the trial court defendant’s counsel admitted that he had made no attempt to secure witnesses in question or to secure their testimony in person between October 5, when a continuance was granted, and October 23, the date set for trial. Further, the record discloses no effort by defendant to make use of the Uniform Act To Secure Attendance of Witnesses From Without State. (K. S. A. 62-2801, et seq.)
Under the circumstances related we find no abuse of discretion in the trial court’s denial of a continuance. The rule is well-established in this jurisdiction that the granting of a continuance in criminal cases lies largely within the discretion of the trial court, whose ruling will not be disturbed on appeal unless there has been an abuse of discretion which prejudiced a defendant’s substantial rights. (State v. Dickson, 198 Kan. 219, 424 P. 2d 274; State v. Adamson, 197 Kan. 486, 419 P. 2d 860; State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541, appeal dismissed and cert. den. 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.)
Included with contentions made in his first point, defendant now claims that he did not intelligently waive his preliminary hearing, although he was represented by retained counsel of his own choice at the time. When this point was raised before the trial court defendant’s present counsel agreed to stipulate that defendant was adequately represented at the preliminary hearing and was coun seled as to his rights in connection therewith by his attorney at that time. No grounds are shown to revoke defendant’s waiver of a preliminary hearing. (Wright v. State, 199 Kan. 136, 427 P. 2d 611; State v. Holmes, 191 Kan. 126, 379 P. 2d 304.)
For his second point, defendant claims the trial court erred in not changing venue or by not transferring the case to another division of the Wyandotte District Court, because the trial judge had knowledge of defendant’s past record when a notice of intent to invoke the Habitual Criminal Act was filed by the county attorney prior to trial. The contention is unsupported by any decisions of this jurisdiction and is wholly without merit. Defendant fails to point out, and the record is completely void of, any abuse of discretion or intentional discrimination by the trial court in this regard.
Knowledge of accused’s past record, or even belief on the part of the trial judge that accused is guilty, is not enough in itself to require a disqualification. The question is not whether the trial judge believes the accused guilty, but whether the trial judge can give him a fair trial. (State v. Hendrix, 188 Kan. 558, 363 P. 2d 522.)
Notification of intention to invoke the Habitual Criminal Act was made in the same manner — as here — in State v. Gates, 196 Kan. 216, 410 P. 2d 264, and the procedure was approved. (See, also, Adair v. State, 198 Kan. 1, 422 P. 2d 959.)
Defendant next claims error by the trial court in refusing to grant a mistrial because of an alleged sleeping juror. The record discloses that in the course of the trial a juror was seen several times with his eyes closed. Several spectators in attendance at the trial testified as witnesses at the hearing on defendant’s motion for a new trial. They observed that the juror in question had his eyes closed several times during the trial but none of the witnesses testified that he was asleep. The defendant was unable to corroborate his allegation that the juror was asleep. The juror was not called to testify as to what testimony, if any, he may have missed. The trial court heard the testimony relative to the matter and commented on his observation of the juror during the trial. Because of its favored position, the judgment of the trial court on the matter cannot be disturbed on appeal on the showing presented here. The problem of a sleeping juror was considered in State v. Jones, 187 Kan. 496, 357 P. 2d 760, where it is stated:
. . Misconduct of a juror is in the first instance a question for the trial court and when a motion for new trial is overruled it is thereby determined that the irregularity charged was not prejudicial to the substantial rights of the defendant. (State v. Lammon, 153 Kan. 822, 826, 113 P. 2d 1052.) Defendant fails to show that his substantial rights were so prejudiced by the conduct of this juror that a new trial should be granted.” (pp. 499, 500.)
Defendant’s principal contention concerns the admission of a confession, made in the presence of several police officers, shortly after his arrest. He argues that the state fell short of the requirements of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, in advising him of his constitutional rights.
Before admitting defendant’s confession into evidence the trial court, in compliance with the direction of this court in State v. Seward, 163 Kan. 136, 181 P. 2d 478, heard, in the absence of the jury, extensive testimony of witnesses called by the state and defendant with respect to the circumstances surrounding the taking of defendant’s confession. The record discloses that prior to taking defendant’s confession he executed a waiver which set out his right to remain silent, to have counsel, to stop answering questions at any time or until he had talked to a lawyer. The waiver further read that defendant understood his rights, that he was willing to answer questions and make a statement, that he did not want a lawyer, that he understood and knew what he was doing, and that no promises or threats had been made or pressure of any kind used against him. Defendant admits his signature to the waiver and further admits “they sat me down at a desk and told me of my rights and asked me did I want to> call an attorney.” However, he testified that he did not know whether he had read the waiver and confession.
Defendant was interrogated at the police station by Detective Charles Forgey, in the presence of three other detectives, of the Kansas City Police Department. Forgey testified that he presented the waiver to defendant and that defendant appeared to read it, that defendant made no objection to signing the waiver, nor did he indicate that he did not understand it. After the statement was typed, defendant was asked to read it and sign it if it were true. Forgey testified that defendant held the statement in his hands and appeared to read it, that he made no objection, said it was correct, and signed it.
Defendant claims that when he was advised of his rights by Forgey he requested that Casey Jones, an Olathe attorney, be called by telephone. Forgey denies that any such request was made. Defendant also claims that he was intoxicated at the time he made his statement and further that the officers present gave him more liquor during the interrogation. This claim was denied by Forgey and Lieutenant Myers, who was present at the time.
In addition to his own testimony, at the out of court hearing, defendant offered that of three officers who “booked him,” following interrogation by Forgey. The three officers were examined at length by defendant’s counsel concerning defendant’s condition and some testimony was elicited that defendant appeared to have been drinking. One of the officers identified a “Breathalyzer Test,” performed prior to the booking, which resulted in a reading of .17. Defendant also offered the testimony of an acquaintance who saw a television broadcast showing defendant at a booking desk with, what appeared to be, a “booicing sergeant.” The witness testified that “I kind of thought he looked sort of inebriated in a way, like he might be a little bit brewed up, but I didn’t make any opinion of it.” Forgey testified that defendant, at the time of questioning, did not appear to be drunk or under the influence of alcohol, and that he appeared to be in control of his senses.
After hearing the testimony, out of the presence of the jury, the court found the defendant’s confession to be admissible and should be submitted to the jury with a proper instruction for determining what weight, if any, should be given to the confession. No objection was made to the instruction of the court in this regard. In State v. Hansen, 199 Kan. 17, 427 P. 2d 627, in an out of court hearing concerning the admissibility of a confession, the defendant testified that he was a diabetic and not in possession of his faculties due to lack of insulin. The trial court found against the defendant on the factual issue presented. In affirming the trial court’s ruling on appeal we said:
“The court’s findings that appellant’s statements were knowingly and voluntarily made were supported by substantial evidence and will not be disturbed on appeal absent any showing of clear and manifest error.” (p. 20.)
As we have indicated, the trial court carefully followed the directions laid down in Seward and more recently in State v. Milow, 199 Kan. 576, 433 P. 2d 538; State v. Greenwood, 197 Kan. 676, 421 P. 2d 24, and State v. Jenkins, 197 Kan. 651, 421 P. 2d 33.
Here the trial court, after hearing all of the testimony, concluded that the waiver and statement should be submitted to the jury with proper instructions. The conclusion was supported by competent evidence and will not be disturbed on appeal. The applicable rule is found in State v. Jenkins, supra, where it is held:
“Where the trial court conducts a hearing in the absence of the jury to determine the admissibility of defendant’s written statement, the determination that the statement was voluntarily made, is entitled to the weight commonly accorded findings of trial courts and if supported by competent evidence will not be disturbed on appeal.” (Syl. f 1.)
See, also, State v. Robinson, 182 Kan. 505, 322 P. 2d 767, and State v. Demain, 127 Kan. 716, 275 Pac. 139.
In his contentions presented on this point, defendant includes an argument that an identification by the complaining witness at the filling station, immediately following his arrest, constituted a “lineup” and violates the lineup rule laid down in Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926. The identification in this case was made on October 7, 1966. In Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, it was announced that the constitutional rule established in Gilbert and Wade, on June 12, 1967, is not retroactive and has application only to cases involving confrontations for identification purposes conducted in the absence of counsel after the date of those decisions. (See State v. Chuning, 201 Kan. 784, 786, 443 P. 2d 248.)
In his brief defendant argues that an exception to the prospective application of Wade and Gilbert, announced in Stovall, is recognized in Biggers v. Tennessee, 390 U. S. 404, 19 L. Ed. 2d 1267, 88 S. Ct. 979, and supports his argument by quoting from a dissenting opinion written by Justice Douglas. The decision of the Tennessee Supreme Court, affirming the conviction of Riggers, was affirmed by an equally divided court, as a result the prospective application rule announced in Stovall was not altered.
In his fifth point on appeal, defendant contends the verdict was against the weight of the evidence. This contention is wholly without merit. The victim of the robbery testified that one man walked into the filling station, that nothing was covering his face, and that the identification was positive and unequivocal. On cross-examination the the victim stated:
“I picked him out of a whole bunch of photographs they brought down to the service station, and I’m positive.”
The jury also had the benefit of the waiver and confession and the testimony relative to their execution. After hearing all the testimony the jury returned a verdict of guilty which was approved by the trial court. Under such circumstances the verdict will not be disturbed on appeal. The oft repeated rule was most recently stated in State v. Paxton, 201 Kan. 353, 440 P. 2d 650, where it was held:
“A verdict of guilty which has been approved by the trial court will not be set aside because of insufficiency of evidence, unless it is clearly made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the trial court.” (Syl. f 4.)
Defendant next complains of actions of the county attorney during the course of the trial. In support of his contention defendant’s counsel filed an affidavit with the trial court with his motion for a new trial and at the hearing called an officer to testify as to remarks allegedly made by the county attorney. The affidavit referred to merely recited the impressions of defendant’s counsel. The witness called failed to support defendant’s contention as to either of the two instances of improper conduct, claimed by defendant. Further, defendant fails to show how he was prejudiced by any actions of the county attorney, if they occurred as alleged. The contention is without merit.
Defendant next contends the trial court erred in allowing officers called as witnesses for the state to testify from police reports when no foundation had been laid. The record discloses that the three witnesses, while testifying, referred to the reports in question when fixing times, dates, and street addresses during the course of their testimony. The police reports referred to were prepared by Detective Stowers who testified for the state and was cross-examined by defendant.
It has long been the law in this jurisdiction that a witness may refresh his recollection by referring to a writing made shortly after the occurrence of the fact to which he relates, and to testify to the fact provided he had an independent recollection of the subject matter. The weight and force of such testimony is for the determination of the trier of the facts. (State v. Scott, 199 Kan. 203, 428 P. 2d 458, and State v. Cook, 180 Kan. 648, 305 P. 2d 851.)
Lastly, defendant contends the trial court erred in denying his motion for judgment of acquittal notwithstanding the verdict, or in the alternative motion for a new trial. Defendant presents no further argument in support of this contention. The responsibility of the trial court on motion for a new trial is succinctly described in State v. Smith, 187 Kan. 42, 353 P. 2d 510, where it is held:
“On motion for new trial after a verdict of guilty in a criminal case, the trial court has the duty of using its best judicial discretion in determining whether it will approve the verdict or grant a new trial, regardless of any error to which objection was made at the trial.
“In reviewing the order of a trial court on motion for new trial the supreme court has no discretion and must find clear error before reversing the order of the trial court on the motion.” (Syl. ff 1,2.)
We have carefully examined the voluminous record in this case and find the verdict of guilty supported by substantial evidence sufficient to justify the trial court’s order approving the same and in the absence of any showing of prejudicial error the judgment must be affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Alfred G. Jones, was charged in one and the same information with eight separate and distinct crimes relating to his unlawful possesion and use of pistols.
The first count charged the possession and control July 18, 1966, of a .357 magnum revolver after conviction of the offense of attempted armed robbery in the state of California in June 1965, in violation of K. S. A. 21-2611. The second count charged the willful resistance and opposition of a ministerial officer on July 18, 1966, in the discharge of an official duty in a felony case, in violation of K. S. A. 21-717. The third count charged an assault upon Charles Stewart, a Wichita police officer, on July 18, 1966, with a .357 magnum revolver, in violation of K. S. A. 21-431. The fourth count charged the possession and control on July 16, 1966, of a .32 caliber revolver after conviction of the offense of attempted armed robbery in the state of California in June, 1965, in violation of K. S. A. 21-2611. The fifth count charged robbery in the first degree on July 16, 1966, of $3,946 lawful money of the United States from the Steen’s Super Discount Store in the presence of and against the will of John W. Marshall, in violation of K. S. A. 21-527. The sixth count charged the deliberate and premeditated murder of John W. Marshall on July 16, 1966, with a .32 caliber revolver in violation of K. S. A. 21-401. The seventh count charged the deliberate and premeditated murder of Sue M. Marshall on July 16, 1966, with a .32 caliber revolver in violation of K. S. A. 21-401. The eighth count charged the possession and control on June 5, 1966, of a .22 caliber short Rahm revolver after conviction of the offense of attempted armed robbery in the state of California in June, 1965, in violation of K. S. A. 21-2611.
At a trial in the district court by a jury, which commenced on January 3, 1967, and terminated on January 16, 1967, the state’s evidence was the only evidence introduced. Although the defendant issued subpoenas for witnesses to testify on his behalf, he called no witnesses and offered no evidence. At the close of the state’s evidence and the overruling of the defendant’s motion for discharge, the case was submitted to the jury. The defendant was found guilty of each of the separate crimes charged in the information, and for conviction of each of the crimes of murder the jury assessed the penalty of confinement at hard labor in the Kansas State Penitentiary for life. Upon the overruling of his motion for a new trial on February 3, 1967, the defendant was duly sentenced to the penalties prescribed by the statutes, all of the sentences to riin consecutively with each other, and he timely perfected this appeal.
The events giving rise to this appeal took place in Wichita in June and July of 1966.
Highly summarized, the evidence disclosed that between the hours of 10:30 p. m. on Saturday, July 16, and 3:45 a. m. on Sunday, July 17, Steen’s Discount Store at 21st and Grove Streets in Wichita was robbed of $3,946, and Sue M. Marshall and her husband, John Marshall, an employee of the store, were shot and killed with a .32 caliber revolver. About 3:40 a. m. on July 17, a merchant police officer tried the front doors at Steen’s Store. One of them was unlocked. The outside doors of the store were locked at approximately 10:35 p. m. when all the employees left the store except John and Sue Marshall who were checking the day’s receipts at the courtesy counter. The police were notified and the robbery and homicides were discovered. A witness who was leaving a friend’s house and returning home passed the east end of the store at approximately 10:35 p. m. and heard three loud noises — like somebody beating on a pot or a pan. Upon learning of the deaths of the Marshalls the next morning, the witness remembered those sounds and reported to the police he heard three shots, thus establishing the approximate time the Marshalls were killed and the robbery occurred.
The defendant lived with two other men at 2508 Stadium Street in Wichita. He also had a bed in the basement of his parents’ home at 2208 Shadybroolc in Wichita, where he occasionally slept. The Stadium address was within three blocks or two minutes thirty seconds walking distance, and less than one and a half minutes running time from Steen’s store. When arrested on Monday, July 18, the defendant was at the Stadium address.
It was the theory of the state that the defendant entered Steen’s store and hid until all the employees left except the Marshalls; that he then approached the Marshalls and forced them into the meat department where he killed John Marshall and killed Sue Marshall in the insulated meat cooler where she was trying to hide, and that he then robbed the store of $3,946. The defendant was seen to enter the store about 7:30 p. m. and was never seen to leave. His appearance was one of easy identification. Several months prior to July 16, the defendant was in an automobile accident which crushed his lips and broke his jaw in seven or eight places. Because of damaged facial muscles, his features pulled over in a sneer, twisting his eyes and other physiognomy in a cruel appearing position. There was a resulting loss of control of his saliva gland necesitating the frequent use of a handkerchief or towel to his mouth.
There were four shots fired when the Marshalls were killed. One bullet went through the front window of the store, two bullets were fired into the head of John Marshall, and one bullet into the head of Sue Marshall. The jury could reasonably conclude that the testimony of the witness that he heard only three shots was because the fourth shot fired into the head of Sue Marshall was muffled by the insulation of the meat cooler.
The evidence of the ballistic expert of the Wichita police department was uncontroverted that the bullets removed from the heads of John and Sue Marshall were fired by the defendant’s .32 caliber pistol. Likewise, the evidence was uncontroverted that five expended .32 cartridges found in the waste basket in the bathroom at the Stadium address were fired from the defendant’s .32 caliber pistol. The ballistic expert further testified that small flecks of gray paint found on the barrel of the defendant’s .32 caliber pistol matched all the physical characteristics of the gray paint on the meat counter in Steen’s store where John Marshall was murdered, and further there were some identifiable indentations in the wood of the meat counter.
The activities of the defendant as established by the evidence were as follows: On Friday, July 15, one Carolyn Bills, the defendant’s girl friend, was treated at a hospital after she accidentally shot herself with the defendant’s .32 caliber pistol while trying to unload it at the Stadium address. The defendant accompanied her to the hospital and told her to state the pistol was hers. This was untrue, and Miss Bills later telephoned the police the serial number showing the pistol was purchased by the defendant on July 9, at the Wichita Brokerage Company, in his brother’s name. The evidence showed the pistol was in the defendant’s possession at 4:30 p. m. Saturday, July 16.
On Saturday night, July 16, Clara Hopson and her husband drove to the Stadium address to see what the defendant and Ralph Credit, who lived with him, were doing. The defendant was a cousin of Clara’s husband and Credit was her brother. She testified “it was around 11:20, between 11 and 11:30.” The Hopsons drove the defendant over to his parents’ home at 2208 Shadybrook where he went into the house with a brown paper sack “like you get at the store,” containing something. The Hopsons were visiting in the street with the defendant’s brother and as they were preparing to leave, the defendant came back without the paper sack and asked them to drive him down on Murdock Street. The evidence showed that thereafter the defendant went “out on the town” for the balance of Saturday night, displaying a large sum of money.
On Sunday morning, July 17, the defendant gave one of his friends some money at the Stadium address to make a delinquent car payment and he complained to another friend that Ralph Credit had taken $500 of his money. After Credit fell asleep the defendant took Credit’s billfold and showed the witness he had $480 in twenty-dollar bills which he said Credit had taken.
The defendant’s activities disclosed that all day Sunday he engaged in a series of crap games where he lost large sums of money, the losses of which were established by the testimony of the witnesses who won the money. As the word spread that the defendant had a large sum of money, the games referred to were set up by professional gamblers for the purpose of separating the defendant from his money.
On Monday morning, July 18, the defendant returned to his parents’ home at 2208 Shadybrook just as his brother was leaving to teach school. The defendant gave approximately $700 in cash to his brother’s wife to keep for him. Later that day the defendant and his cousin went to Rosen brothers Pawn Shop where he purchased a .357 magnum pistol and ammunition which cost in excess of $100. Instead of giving his own name when he purchased the gun, he gave and signed the name of his brother, A. J. Jones, as being the owner. The defendant immediately loaded the gun, and he appeared nervous. On the way back to the Stadium address the defendant told his cousin that on Sunday he lost $1600 gambling. The amount of money expended by the defendant and his crap game losses and the delivery of money for safekeeping accounted for the bulk of the money taken in the robbery.
On Monday, July 18, armed with the evidence of the robbery and the murders, the defendant suddenly having large sums of money, his background, his status and certain statements made by him with respect to having shot those “M . . . F . . .’s in the head,” Captain Hannon of the Wichita police department filed his verified applications with Judge Noone of the district court for two search warrants, one for the Stadium address and one for the Shadybrook address. The search warrants were issued by Judge Noone upon probable cause at 3:05 p. m.
When the officers went to the Shadybrook address they were invited into the house. After they explained their mission, the defendant’s brother went to his and his wife’s bedroom and came out with a large sack of bills which he and his wife and a detective initialed. This was the money the defendant had given to his sister-in-law to keep. There was one ten-dollar bill, 114 five-dollar bills, and 131 one-dollar bills. A search was made of the defendant’s bed in the basement of the house and the detective discovered two one-dollar bills and one five-dollar bill hidden under his mattress. All the money was turned over to the officers at about 5:00 p. m. No search was made of the premises outside the house.
Detective Stewart had the search warrant for the Stadium address and, together with other officers, went to that location to execute the warrant and search the premises. He did not know the defendant, and went to the address in connection with the investiga tion of the murder of the Marshalls in the course of the robbery of Steen’s store. Circumstances known to him and the other police officers were such as would warrant a reasonable cautious man in the belief that the defendant had committed the murders, and if they would see and identify him, they would arrest him for murder. As Stewart approached the house he walked up to the front stoop and knocked on the screen door. He identified himself as a police officer, saying “Police Officer, I’d like to talk with you.” There was a couch along the wall immediately inside the door. The door was on the south side of the house and the couch ran north and south against the east wall of the living room. The defendant was lying on the couch on his back with his head toward the door. When Stewart identified himself and knocked on the screen door, the defendant roiled over and reached for his loaded .357 magnum pistol which was lying on the floor by the couch. He got his hand on the weapon and Stewart, seeing his action and seeing the weapon, opened the screen door, sprang into the house and kicked the gun away from the defendant’s hand to keep the defendant from shooting him. After the defendant identified himself, Stewart placed him under arrest for murder and handcuffed him. The defendant’s person was searched and cartridges for the .357 magnum pistol and some $31 in currency were found in his pockets which were removed following his arrest.
The house and yard at the Stadium address were searched by the officers. A .32 caliber cartridge was found near the front steps and another was found in the northwest corner of the living room. Three .357 magnum cartridges were found on the couch where the defendant had been lying, and a box containing twenty-one .357 magnum cartridges was found in the bathroom. There were two bullet holes between the window and the fireplace and a third bullet hole leading outside beneath the lower east window sill. As previously indicated, five .32 caliber expended cartridges were found in the wastebasket in the bathroom; one was found in the hallway, and another on the floor of the bathroom.
Upon completion of the search, the defendant was taken into custody and held for the issuance of a warrant. The following day, Tuesday, July 19, a complaint was filed in the Court of Common Pleas of Sedgwick County charging the defendant with seven separate felonies, and a warrant was issued for his arrest. He was taken before a magistrate where he appeared with Mr. Russell Shultz, an experienced criminal lawyer, who had been retained by him.
On Wednesday, July 20, a second search warrant was issued for the Shadybrook premises upon the application of Captain Hannon. The application was made to Judge Noone of the district court, who issued the search warrant upon probable cause at 5:15 p. m. A search of the Shadybrook premises was made by police officers who found the defendant’s .32 caliber pistol in the yard lying in the grass between an old car and the hedge growing on the property line. The car was parked off the driveway near the hedge. It had a flat tire and the grass beneath it was dead, indicating it had not been driven for some time. The lawn was Bermuda grass and there were runs of grass over the weapon. The grass beneath the weapon was a dark yellow. There was an area between the dark yellow and green grass which was a lighter shade of yellow. Near the weapon and immediately west and beneath the hedge was a neatly folded white handkerchief with a monogram of “J” on top of it. A single dollar bill was found immediately south of the right front wheel of the car.
The gun was photographed where it lay in the grass and it was removed to the laboratory for examination and a comparison was made between the bullets from the heads of the Marshalls and the pistol. The gun had six chambers in the cylinder, which contained two cartridges in adjacent chambers. The other four chambers of the cylinder were empty. The weapon had been fired four times. Tests conducted in the growing of the same type of grass were completed on December 31, 1966, and were used to establish the number of days the pistol had been lying in that location.
On August 23, an amended complaint was filed charging the defendant with the commission of the eighth felony — the unlawful possession and control on June 5, of a .22 caliber short Rohm revolver after conviction of a felony in the state of California. The evidence in support of this offense established that on June 5, Carolyn Bills, the defendant’s girl friend, broke up with the defendant and while he was chasing her down the street she fell; he caught up with her and was holding the .22 caliber pistol to her head when her uncle, Robert Holliman, Jr., interfered and knocked the pistol away. The defendant then turned on Holliman and attacked him, which gave Miss Bills time to run away. A neighbor boy saw the defendant throw the gun in the alley. The loaded .22 pistol was recovered from where it had been thrown. Miss Bills was the witness the defendant attempted to prevent from testifying at the trial on the grounds she was his common-law wife. The evidence further established that the defendant purchased the .22 caliber pistol from Wichita Brokerage Company on May 8, 1966.
On September 9, the defendant was given a preliminary examination. The defendant appeared in person and with his retained counsel. The state presented its evidence at the conclusion of which the judge of the Court of Common Pleas of Sedgwick County found that each of the eight offenses alleged against the defendant had been committed and that there was probable cause to believe the defendant committed the felonies charged, and he was bound over to the district court to stand trial in the Septempter 1966 term of the court.
On September 14, the county attorney filed a verified information in the district court charging the defendant with the eight separate felonies heretofore referred to, and endorsed thereon the names of all witnesses known at that time to the county attorney.
On September 19, the defendant and his retained counsel appeared before the district court for arraignment where the defendant stood mute with respect to all charges alleged against him. The district court entered a plea of not guilty on all counts (K. S. A. 62-1305), and the case was set or trial by a jury on October 19, at 9:00 o’clock a. m. The question of serving a copy of the information upon counsel for the defendant pursuant to K. S. A. 62-1302 was raised by the district court on its own motion, and was settled to the satisfaction of the defendant, his counsel, and the court, at the arraignment.
In the meantime the defendant was unable to make financial arrangements with Mr. Shultz, and he was permitted by the district court to withdraw as counsel for the defendant. On or about October 17, the defendant retained Mr. G. Edmond Hayes who tried the case on his behalf and represented the defendant on this appeal.
On October 17, the counsel for the defendant filed a motion for the continuance of the trial over the September term, which was sustained, and the trial was continued generally. Other pretrial motions were lodged and heard covering more than 400 pages of transcript. The case was set for trial on January 3, 1967, and the defendant lodged several more motions the day of the trial. Those were overruled, the juiy was selected, about which no complaint is made, and at the close of the evidence and arguments of counsel, the jury returned a verdict of guilty on all counts charged as heretofore indicated.
The argument in the briefs and before this court took a very wide range involving twenty some specifications of error on the part of the appellant, which were all denied by the state.
It is first contended the district court erred in overruling the defendant’s plea in abatement filed November 7, 1966. The defendant attempts to raise the validity of the issuance of the warrant for his arrest by the clerk of the court of common pleas. He maintains that such an officer is not empowered to determine probable cause, and argues such a determination is a judicial act which cannot be delegated to a ministerial officer. The state of the record does not require we decide the point. Pleas in abatement are dilatory pleas and are not favored by the courts. (Walker v. United States, 93 F. 2d 383, cert. den. 303 U. S. 644, 82 L. Ed. 1103, 58 S. Ct. 642, reh. den. 303 U. S. 668, 82 L. Ed. 1124, 58 S. Ct. 755.) Courts have been and are particular about the sufficiency and promptness of the filing of such pleas. The general rule is set forth in 22 C. J. S., Criminal Law, § 429, p. 1224, as follows:
“A plea in abatement must be presented with the greatest promptness, usually not later than the arraignment, and ordinarily must precede an application for a . . . continuance . . . and if not filed in proper time is regarded as waived.”
The defendant was arraigned September 19, and a plea of not guilty was entered for him. Thereafter, and on October 17, he filed a motion for continuance and the facts presented in his plea in abatement filed November 17, were known to him at the time he sought the continuance. Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 Pac. 96; State v. Bland, 120 Kan. 754, 755, 244 Pac. 860; State v. McCarther, 196 Kan. 665, 414 P. 2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P. 2d 550, and Gray v. State, 194 Tenn. 234, 250 S. W. 2d 86. Moreover, the defendant was arrested by the officers on July 18, at the Stadium address on probable cause for the crimes of murder. In addition, the defendant was afforded a preliminary examination where the state presented evidence upon which the examining magistrate made a finding that the crimes charged had been committed and that there was probable cause to believe that the defendant committed them. The entire question was moot at the time the plea in abatement was filed.
It is next claimed the district court erred in overruling the defendant’s motion to require the state to endorse on the information the names of additional witnesses within a reasonable time before trial, and, further, that it erred in permitting the state to endorse eight additional witnesses on December 30.
K. S. A. 62-802 requires the county attorney to endorse the names of the witnesses known to him at the time of the filing of the information, and to endorse the names of such other witnesses as may afterwards become known to him, at such times before the trial as the court may by rule or otherwise prescribe.
The defendant filed a motion making several requests of the court in numbered paragraphs. The fourth paragraph requested the court to set a date for the state to have endorsed on the information all the witnesses it intended to use. On December 15, the district court denied the motion upon the grounds that it was premature and that it called for an assumption there would be additional witnesses endorsed without the court knowing who they might be and what they would testify to. The court stated a ruling upon the question would be made upon the facts and circumstances if and when the question arose.
On December 30, the state filed its motion to endorse the names of eight witnesses on the information, five of whom were listed as residing in California and three of whom resided in Wichita. The out of state witnesses endorsed were not used. However, they were known to the defendant since they were the investigating officers in the charge of attempted aimed robbery in California to which he had pleaded guilty, and from which he was on probation to his parents in Wichita. The three Wichita witnesses were experts in the field of botany and chemistry and were used by the state in the experimental control test which was conducted to measure and observe discoloration in grass similar to the discoloration observed when the murder weapon was discovered on July 20, at the Shadybrook address. That test was not completed until on or about December 30, and as soon as it was completed, the names of the expert witnesses were promptly endorsed. The nature of their proposed testimony was disclosed to the defendant, and his counsel had some two weeks to interview the witnesses and prepare for their cross-examination. The record does not support the defendant’s assertion of lack of availability of knowledge as to the results of the test. On the contrary, the record discloses that counsel conducted a protracted cross-examination of the witnesses which disclosed in and of itself a thorough knowledge and preparation of the subject involved.
The defendant directs our attention to State v. McDonald, 57 Kan. 537, 46 Pac. 966, but it is not helpful to him. It illustrates the rule that where the state moves to endorse witnesses during the course of trial, the defendant is entitled to a continuance to have an opportunity to interview the witnesses. Here no continuance was requested and it cannot be held that the substantial rights of the defendant were prejudicially affected by the ruling of the district court in permitting the state to endorse the names of the witnesses. In State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63, it was held:
“Whether the names of additional witnesses may be endorsed on an information at, or after, the commencement of a trial rests within the sound discretion of the trial court, and where such endorsement has been allowed, reversible error cannot be predicated thereon except for abuse of discretion.” (Syl. f 2.)
See, also, State v. Morton, 59 Kan. 338, 52 Pac. 890, and State v. Howland, 100 Kan. 181, 163 Pac. 1071.
The defendant claims there was a deliberate plot by the county attorney to secrete the witness Robert Holliman, Jr., by falsifying his true address. The point is not well taken. A Wichita address was listed on the information, and it is claimed the state knew the witness resided in Ft. Smith, Arkansas, and would never be found in Wichita. The record indicates the Wichita police department searched for the witness but was unable to locate him until after the trial was started, when he was returned to Wichita. The witness was present in court for several days during which time the defendant had ample time to interview him.
It is claimed the state failed to comply with the provisions of K. S. A. 62-1302 in that the clerk of the district court failed to deliver a copy of the information to the defendant or to his attorney at least 48 hours before he was arraigned. The record completely refutes the contention. As indicated, when the defendant was arraigned, the district court, on its own motion, raised the question, and statements of counsel in the record clearly negate the assertion.
The defendant claims the court erred in overruling his objection to the experimental test known as a “control test,” for the reason that the conditions under which the test was conducted were not similar or the same as the conditions at the Shadybrook address. The control test was run at Wichita State University to show how long the .32 caliber pistol had been lying on the lawn. It is basically claimed the control test was not conducted under similar or the same conditions which prevailed between the night of July 16, and the afternoon of July 20. The defendant concedes that evidence of an occurrence entirely disconnected with the one involved which tends to illustrate a physical fact, where the conditions are the same or similar, is relevant and admissible because the observed uniformity of nature raises an inference that like cause will produce like results. (Wiggins v. Missouri-K.-T. Rld. Co., 128 Kan. 32, 276 Pac. 63.)
The evidence established that the same kind of grass as that in the lawn where the pistol was found was used; that the Bermuda grass grown and used in the test was under correctly controlled scientific conditions in a chamber in general use in botanical science which was so constructed that it enabled growing conditions for specific days to be set up in its environment; that the rainfall, temperature, and light conditions for July 16, through July 20, were used, and the rainfall data was from a United States Weather Bureau Station located four blocks from where the pistol was found. The persons who conducted the experiment were well qualified by the admission of the defendant.
The district court, after the requisite foundation was laid and the requisite similarity of conditions established, admitted into evidence colored transparencies of the control experiment which showed discolored areas of grass produced by having pistols lying in them for various lengths of time (3 or 4 days) which correpsonded with the discoloration and yellowing and growth of the grass which officers had observed upon finding the pistol. The test was relevant to determine how long the pistol had lain outside in the grass and the experiment was helpful to the jury in so determining. It is well established that scientific experiments may be shown in evidence as well as the testimony of experts in support thereof (K. S. A. 60-456; 29 Am. Jur., 2d, Evidence, §§ 818, 819, 822, 824, pp. 908-912.) It was a matter perculiarly within the discretion of the court to decide the admissibility of such evidence in the light of all the surrounding facts and circumstances. (Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219; 29 Am. Jur. 2d, Evidence, §§ 818, 820, 824, pp. 908-912.) This court has accepted evidence of scientific tests (State v. Jones, 41 Kan. 309, 21 Pac. 265; State v. Asbell, 57 Kan. 398, 46 Pac. 770; Johnson v. Railroad Co., 80 Kan. 456, 103 Pac. 90), and we think the district court did not err in its ruling.
The defendant argues that since the officers did not find the .32 caliber pistol at the Shadybrook address on July 18, that fact established that it was not then lying outside where it was found on July 20. The argument is one properly addressed to the jury but it lacks merit when directed to an appellate court. No search of the yard was made on July 18. The question was one for the jury to determine and it made a reasonable determination.
The defendant next contends the district court erred in refusing to discharge him as to count 2 at the close of the state’s evidence. The court charged the defendant with wilfully resisting and opposing Officer Stewart on July 18, in the discharge of his official duty in a felony case in violation of K. S. A. 21-717. The defendant argues the statute applies only to resistance in the execution of a warrant or other process, and since he was not told Stewart had a search warrant for the premises and that after being so advised, he made no opposition or resistance to the officer, the statute was not violated. The statute states, “or in the discharge of any official duty in any case of felony,” and we are of the opinion the gravamen of the offense is resistance and opposition to the officer in the discharge of his official duty. (State v. Merrifield, 180 Kan. 267, 303 P. 2d 155.) The evidence showed that Stewart, while investigating two murders and a robbery which had in fact been committed and which he had reasonable grounds to believe the defendant had committed, was in fact resisted and opposed while performing that duty. When Stewart knocked on the screen door at the Stadium address, saying, “Police Officer, I would like to talk to you,” there remained little question that he was an officer in the performance of his duty. The evidence showed the defendant was reaching for his .357 magnum pistol and got his hand on it, after being advised that a police officer wanted to speak to him. This court takes judicial notice of the lethal nature of a .357 magnum pistol. The intent of the defendant in reaching for his pistol is a state of mind and since such intent is not subject to direct proof, it can be gathered from the facts and surrounding circumstances. (State v. Jensen, 197 Kan. 427, 417 P. 2d 273.) Stewart’s testimony showed what he reasonably believed to be the defendant’s intent in reaching for his pistol — that the defendant intended to kill him. In Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, it was said:
“. . . Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
“In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (pp. 23,24.)
The record shows that because Officer Stewart was well trained in police discipline, he was successful in disarming the defendant and saving his own life. One need not wait until the rattlesnake strikes to protect ones self. He may act when the rattlesnake coils and thus ward off the deadly effect. Officer Stewart was not required to wait until the gun was pointed and the trigger pulled. He was in the discharge of his official duty in investigating a felony and we are of the opinion the district court did not err in overruling the defendant’s motion to discharge him.
The defendant next contends the district court erred in overruling his objection to standing trial on the eight separate counts charged in the information and contends that each count did not require the same evidence, the same punishment, or the same mode of trial. The point is not well taken. In State v. Anderson, 202 Kan. 52, 446 P. 2d 844, the identical question was passed upon and it was held:
“Where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. The fact that one of the counts with which the defendant is charged consists of the possession of a pistol after conviction of a felony, contrary to K. S. A. 21-2611, does not alter the foregoing rule.
“Whether a defendant in a criminal action who is charged with several separate and distinct felonies may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests .in the sound judicial discretion of the trial court.” (Syl. f f 3, 4.)
See, also, State v. Odle, 121 Kan. 284, 246 Pac. 1003; State v. Neff, 169 Kan. 116, 218 P. 2d 248; State v. Brown, 181 Kan. 375, 312 P. 2d 832, and State v. Hacker, 197 Kan. 712, 421 P. 2d 40, cert. den. 386 U. S. 967, 18 L. Ed. 2d 119, 87 S. Ct. 1050.
The defendant argues that the pistol he was charged with possessing on June 5, was never identified at the trial. The record refutes the contention. Two witnesses, Holliman and Miss Bills, testified that on June 5, the defendant had possession of the pistol which was pointed at Miss Bills’ head and the defendant threatened to discharge it. Moreover, the pistol was introduced into evidence without objection.
The defendant further contends that evidence of his cocking and playing with the .357 magnum pistol on July 18, approximately 48 hours subsequent to the murders, was prejudicial. We think the evidence was material. It tended to show the defendant’s state of mind and his propensity to possess pistols, and was evidence of his possession of the weapon. Likewise, his argument that proof of possession of instruments with which to commit crimes was not proper, is ill-founded. See State v. Montgomery, 175 Kan. 176, 180, 261 P. 2d 1009; State v. Omo, 199 Kan. 167, 428 P. 2d 768, and 2 Wigmore on Evidence, 3d ed., § 238, p. 33. We are of the opinion the district court did not err in requiring the defendant to stand trial on the eight separate and distinct crimes charged in the information.
It is contended the district court erred in admitting into evidence all money as exhibits, over the defendant’s objection. It is argued the state made no attempt to lay a foundation as to the defendant’s financial worth prior to the seizure of the money introduced into evidence, and there was no showing of his marked financial improvement prior to or subsequent to the crimes alleged.
We think the state was not required to show the defendant’s financial status prior to July 16, but that it need only show the sudden acquisition or rise in his financial condition subsequent thereto. The rule is that in the prosecution for crime where there is evidence of the guilt of the accused and the crime is of such a nature that the acquisition of money may be regarded as a natural or ordinary result of its perpetration, evidence is admissible of the sudden acquisition of money by the defendant, or of a marked improvement in his financial condition at or subsequent to the time the offense was committed, although the source of the money is not definitely traced or identified by the prosecution. (91 A. L. R. 2d 1046, 1057, 1061.)
In the instant case, the evidence showed that in the early hours of Sunday, July 17, the defendant was observed at a local night club with money “sticking out” of his shirt pocket, and was buying liquor for his friends. He was laughing and joking with his friends later that same morning about the fact that Ralph Credit had taken $500 of his money and then proceeded to verify that fact. With respect to gambling on Sunday, July 17, the defendant was fought over by the “hustlers” — the professional gamblers who sought to part him from his money and who separated him from $1600, according to his own statement. It was the defendant who gave his sister-in-law a stack of money for safekeeping on Monday morning, July 18. It was also the defendant who spent over $100 that same morning to purchase a new magnum pistol and ammunition. All of those facts were before the jury for its consideration, and we think properly so. A similar contention was presented by the defendant in State v. Gauger, 200 Kan. 563, 438 P. 2d 463, and it was held the currency had a natural and logical connection under the circumstances shown by the evidence to raise a strong inference that he took the money, and was properly admitted. See, also, State v. Grebe, 17 Kan. 458; State v. Anderson, supra, and State v. Cofer, 73 Idaho 181, 249 P. 2d 197. We think the money in the case at bar was properly admitted into evidence. (K. S. A. 1967 Supp. 60-401; In re Estate of Isom, 193 Kan. 357, 394 P. 2d 21.)
Prior to the trial, the defendant requested the county attorney to produce the statements taken by the Wichita Police Department from certain named witnesses, and, further, to produce the statements of any witness not used by the state at the preliminary examination. The motion was heard and denied on December 15. We think the district court did not err. The statements were not official documents, nor a part of any court record. In State v. Badders, 141 Kan. 683, 42 P. 2d 943, it was said:
“. . . the county attorney refused to deliver to defendant for inspection written statements made by the four young men to the county attorney in his office when he was attempting to learn the facts respecting the offense. It is sufficient to say defendant was not entitled to inspect such statements. They were in no sense public records and amounted to no more than memoranda the county attorney might have made of what the witnesses told him. (See State v. Laird, 79 Kan. 681, 100 Pac. 637; State v. Jeffries, 117 Kan. 742, 232 Pac. 873; State v. Furthmyer, 128 Kan. 317, 277 Pac. 1019; State v. Hooper, 140 Kan. 482, 37 P. 2d 52.)” (l. c. 685.)
The defendant contends the district court erred in overruling his objection to the use of the ex parte transcript of the witness Clara Hopson and by improperly allowing the court reporter to verify the accuracy thereof from his notes taken at the time the statement was given. In discussing this point it is important to note that the defendant had given notice of alibi and his entire defense was based upon the fact that he had been with Mr. and Mrs. Johnny Hopson traveling from the Stadium address to his mother’s home on Shady-brook at the time the shots were heard in Steen’s store.
Prior to the preliminary examination subpoenas were issued and served upon Mr. and Mrs. Hopson to compel their testimony on behalf of the state. Both witnesses failed to obey the commands of the subpoenas. After the preliminary examination was concluded and the defendant bound over for trial in the district court, the county attorney issued a contempt citation to Mrs. Hopson for her failure to respond to the subpoena. Mr. Hopson was subpoenaed to testify before the county attorney pursuant to K. S. A. 62-301. At a hearing before the Court of Common Pleas, Mrs. Hopson testified under oath with respect to the charges against the defendant. The defendant was provided a copy of the transcript of the preliminary examination, but the testimony of Mrs. Hopson at the hearing on the contempt citation was not made a part of that transcript and the defendant was not provided a copy thereof.
The county attorney was fully justified in issuing the contempt citation since obedience to a subpoena is an important and necessary function of any trial or hearing, and the fact he obtained her testimony with respect to the charges against the defendant on the night in question was not improper. The investigatory powers of the state do not end with the conclusion of a preliminary examination, and the state has the right and duty at any stage of the proceeding to ascertain what a witness may testify to at the trial.
When Mrs. Hopson was called to testify on behalf of the state, she became in effect a hostile witness, testifying contrary to the statement she previously had given to the county attorney with respect to the time the defendant was traveling with the Hopsons from the Stadium to the Shadybrook address. Over the defendant’s ob jection and with the court’s permission, the county attorney used the witness’ prior statement on direct examination to impair her credibility. At the trial, she testified it was 10:30 p. m., whereas her prior statement was that it was between 11:00 and 11:30 p. m. Mrs. Hopson admitted giving the prior written statement, but denied making any inconsistent statements and attacked the accuracy of the court reporter’s notes and transcript.
The evasive answers of Mrs. Hopson to several of the questions put to her were tantamount to a refusal to admit the statements imputed to her and this was sufficient to warrant the state in showing, if it could, that she did make those statements. It is well settled that prior inconsistent statements made by a witness out of court may be shown to impair his credibility. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287.) The rule is stated in State v. Sorter, 52 Kan. 531, 34 Pac. 1036, where it was held:
While ordinarily a party may not impeach his own witnesses, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements; and may, in the discretion of the court, be permitted to show what such contrary statements were.” (Syl. f 5.)
Cases which have followed Sorter are State v. Hamilton, 74 Kan. 461, 87 Pac. 363; State v. Terry, 98 Kan. 796, 161 Pac. 905; State v. Cole, 136 Kan. 381, 15 P. 2d 452; State v. Olthoff, 141 Kan. 70, 40 P. 2d 384, and State v. Barnes, 164 Kan. 424, 190 P. 2d 193. The state had a right to rely on Mrs. Hopson’s prior statements under oath, and her deviation therefrom during the course of the trial left the state with no alternative but to impeach her by the use of her prior inconsistent statement. (K. S. A. 60-422 [fit].)
The defendant complains of the reading by the official court reporter of the prior statements made by Mrs. Hopson at the contempt hearing, which the reporter had transcribed. The reporter testified he had compared his notes with the transcript and that he put down and accurately transcribed what Mrs. Hopson said. Up until the time the court reporter read his notes of the prior inconsistent statements of Mrs. Hopson, she had denied making such prior inconsistent statements and, as indicated, had also attacked the veracity of the transcript. There was no abuse of discretion in admitting the court reporter’s testimony and that portion of the transcript dealing with the time the defendant was traveling with the Hopsons, and the testimony with respect to his having a brown paper sack. In State v. Gauger, 200 Kan. 515, 438 P. 2d 455, it was held:
“Where a witness admits giving a prior written statement but cannot remember the contents thereof, or neither admits nor denies the same, there is ample foundation for admitting the statement itself for impeachment purposes, or at least the impeaching portion thereof.” (Syl. f 1.)
As we view the matter, the district court, having considered the defendant’s objection to the use of the prior inconsistent statements, properly exercised its judicial discretion in allowing the state to proceed, and it was within the province of the jury which of Mrs. Hopson’s statements it would believe.
The defendant asserts that the district court’s denial of his right to use the ex parte transcript for the purpose of cross-examining Mrs. Hopson prejudiced his substantial rights. He cites and relies upon State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027, which he claims supports the rule that the defense has a right to examine reports and statements used by the state’s witnesses to refresh their memory. However, it was there held it was not error to refuse defendant’s counsel the right to examine a report as more fully described in the opinion. Be that as it may, the defendant does not point out where the court’s refusal prejudiced him. He indirectly argues he was somehow deprived of an opportunity to ascertain what Clara Hopson would testify to at the trial, but such an assertion strains credibility. She was defense counsel’s client. In fact, he claimed to represent her and her husband and a glance at the defendant’s-cross-examination of Mrs. Hopson reflects a well-interviewed witness. The granting or refusal of the accused’s request for the production or inspection of a writing for the purpose of cross-examining the witness lies in the discretion of the district court, and in the absence of an abuse of discretion, no error can be predicted thereon. (State v. Oswald, 197 Kan. 251, 262, 417 P. 2d 261.)
Throughout his brief, the defendant makes repeated assertions that evidence favorable to him was suppressed by the state. The record does not support the assertion. To illustrate: It is claimed the court refused to permit the defendant to present evidence favorable to him with respect to an alleged dermal nitrate test and that he was improperly denied the use of a hypothetical question. The points are not well taken. There was no evidence presented by the state of a dermal nitrate test. However, the defendant sought to elicit that information on cross-examination of certain state witnesses. The court sustained the state’s objections to the defendant’s questions upon the ground of improper cross-examination. The ruling was proper. The defendant had only to call those witnesses to testify on his behalf. Yet he did not choose to do so. The same was true with respect to the hypothetical question. Likewise, the defendant’s claim that the search warrants for the Stadium and the Shadybrook premises were not issued upon probable cause, lacks substance. No further comment on this point is necessary except to say that the detailed verified applications of the police officer to procure the search warrants were based upon his personal knowledge of information amassed by the police department that the crimes of murder and robbery had been committed, and that the affiant had received reliable information from a credible person whose truthfulness he had reason to believe, that the defendant was in possession of a large sum of money and had stated he shot those two “M_F’s_in the head,” thus reciting the underlying circumstances which were essential for the magistrate to perform his detached function of determining probable cause, and that the warrants were issued in conformity with K. S. A. 62-1828, et seq.; Section 15 of our Bill of Rights, and United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741.
The defendant’s reliance on Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, is without merit. In that case, unlike here, the magistrate had no facts and circumstances made known to him upon which to form a judgment. Here, the defendant had a full and complete hearing upon his search warrant arguments prior to the trial. As a result, it clearly appeared that a neutral and detached magistrate found facts which warranted him as a reasonably cautious man in the belief that the evidence sought to be obtained was at the locations named in the warrants, which were amply justified by the evidence amassed by the police, and there was no abuse of discretion by the court. Since the warrants were lawfully issued, the searches conducted thereunder were proper in all respects. Moreover, the fact that the officers searched inside the house on Shadybrook on July 18, and searched outside the house on July 20, does not uproot the validity of the search warrants. The warrants being issued on probable cause, the searches conducted thereunder were proper in all respects.
The defendant’s argument that the officers were not warranted in taking the handkerchief found between the old car and the hedge, which was not described in the search warrant, is not well founded. The handkerchief was lying in close proximity to the .32 caliber pistol and the officers were justified in taking it into custody. The mere evidence rule was never the law in Kansas (K. S. A. 62-1829), and the Supreme Court of the United States recently abandoned the mere evidence rule in Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642.
The claim is made the district court improperly instructed the jury on flight in that it advised the jury that if it found from the evidence the defendant, soon after the commission of the offenses alleged in the information, fled to avoid arrest and trial, it might take that fact into consideration in determining his guilt or innocence; that his flight, if he did flee, was not sufficient in itself to establish guilt, but was a circumstance which the jury might consider in determining the probability of his guilt or innocence, and that tire weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts brought out in the case. While the evidence of flight was scanty, we are of the opinion the giving of the instruction was not prejudicial error.
Counsel for the defendant displayed vigor and industry in representing the defendant in the trial of this case and has been diligent in advancing claims of error here. Those discussed in detail have been disposed of; others raised have been meticulously examined to determine whether any possible error prejudicial to the rights of the defendant occurred.
Our review of the record compels the conclusion that the defendant was given a fair and impartial trial and that no grounds exist, specified or not, which would necessitate a reversal. The record discloses there was a basis in the evidence from which the jury could infer the defendant’s guilt. The judgment rendered by the district court against the defendant in conformity with the verdict of the jury, and the respective sentences imposed, is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This case arises out of the construction of the will of Nellie Loomis and for direction as to the distribution of the residue of her estate devised by the third paragraph of her will to the “proposed Nellie Loomis Memorial Home for the Aged, Cheney, Kansas.” The district court entered judgment that the third paragraph of the will constituted a valid bequest and devise. The appellants are the decedents heirs at law. The appellee is the executor named in the decedent’s will.
The will was admitted to probate in Sedgwick County on February 19, 1964, and omitting the attestation clause and signatures, reads:
“I, Nellie Loomis, of Milton, Kansas, do hereby make, publish and declare this my last will and testament in manner and form following:
“First: I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done.
“Second: I give and bequeath to Harold Johnson, Solo, Missouri the sum of Five Thousand & no/100 Dollars ($5,000.00).
“Third: All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed, or to which I may be entitled to at the time of my decease, I give, devise and bequeath to the proposed Nellie Loomis Memorial Home for the Aged, Cheney, Kansas, to have and to hold the same forever.
“Fourth: I hereby nominate, constitute and appoint C. O. Bomholt of Cheney, Kansas executor of this, my last will and testament.
“Sixth: I hereby revoke all former or other wills and testamentary dispositions by me at any time heretofore made.
“In Witness Whereof I have hereunto subscribed my name in the presence of Mary Bomholt and Jennie Casley both of Cheney, Kansas, whom I have requested to become attesting witnesses hereto this 28th day of September, 1962.
“/s/ Nellie Loomis”
The merits of the appeal depend upon the validity of the appellant’s contention that the third paragraph of the will contained no indication at all that a trust was to be created, and since there was no person or legal entity in existence with capacity to take the property at the time of the decedent’s death, the devise was void, and the property descended to the decedent’s heirs at law.
The parties stipulated that at the date of the testatrix’ death the proposed Nellie Loomis Memorial Home for the Aged was not in existence. Because of the nature of the gift, that is, to the proposed Nellie Loomis Memorial Home for the Aged “to have and to hold the same forever,” neither the executor nor anyone else may establish such a home at any future time. The executor is obligated to administer the estate in conformity with law, and paragraph three directs he distribute the residue to a nonexistent entity. Under those circumstances, is the residuary clause valid?
The appellee contends the devise contained in paragraph three created a valid charitable trust based upon evidence admitted in the district court, over the appellants’ objection, of oral direction by the testatrix to the named executor after she had executed her will, to prepare plans for the building of a home for the aged which she approved in her lifetime and to incorporate the Nellie Loomis Memorial Home for the Aged after her death, which, he asserts, delineated the charitable purpose of the gift and the organization proposed to administer it.
A charitable trust is created by a will only if the settlor properly manifests therein an intention to create a charitable trust, but such a trust is not created unless the settlor manifests an intention to impose enforceable duties. (2 Restatement of the Law, Trusts, § 351, p. 1099.) The trust for a charitable object must be to some person, body or association of persons having a legal existence and with capacity to take and administer the trust, and for some definite and lawful object. (Ratto v. Nashville Trust Co., 178 Tenn. 457, 159 S. W. 2d 88, 141 A. L. R. 341.)
It has been held that a devise of the residue of an estate to a corporation to be created after the death of the testator is void because there is no devisee with capacity to take the property at the time of death (Zeisweiss v. James, 63 Pa. 465, 3 Am. R. 558; Carr v. Hart, 220 La. 833, 57 So. 2d 739; In re Korzeniewska’s Estate, 297 N. Y. Supp. 997, 163 Misc. 323; 94 C. J. S., Wills, § 106, p. 825), and the possibility that there might be a corporation organized thereafter is too remote. (Malmquist v. Detar, 123 Kan. 384, 255 Pac. 42.) However, it has been held that a person may devise and bequeath property to a corporation to be formed after his death, if the will provides that such corporation shall be so formed and the gift is otherwise valid as, for example, in the case of a valid gift for charitable purposes and uses. (In re Estate of Weeks, 154 Kan. 103, 106, 114 P. 2d 857; H. C. Drew Manual T. School v. Calcasieu Nat. Bank, 192 La. 790, 189 So. 137; St. John v. Andrews Institute, 191 N. Y. 254, 267, 268, 83 N. E. 981, affirmed Smithsonian Institute v. St. John, 214 U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601, Zollmann, American Law of Charities, § 345, p. 229; 15 Am. Jur. 2d, Charities, §44, p. 52; 94 C. J. S., Wills, §106, p. 825.) Where a bequest or devise is made to a charitable corporation for the accomplishment of a purpose for which it was formed, the gift is absolute and not in trust, and is not to be judged by any of the well-known rules pertaining to the law of trusts as applied to individuals. (Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177.)
In determining the force and effect to be given the terms of a will, the court’s first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction. Where, from an analysis of the entire instrument, no ambiguity or uncertainty is found in its language, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions. (In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689.)
The appellee alleged in his pleadings in the probate court and conceded in the district court that the testatrix’ will was clear and unambiguous. Our analysis of the entire instrument discloses no ambiguity, and it contains no language to indicate a manifestation of intention on the part of the testatrix to create a testamentary charitable trust. By manifestation of intention to create such a trust we mean the external expression of intention in writing as distinguished from undisclosed intention or oral instructions or directions given to a named executor or trustee appointed by the will. The testatrix did not devise the property to the executor or to any trustee to establish a home for the aged, nor did her will direct that a corporation be created after her death to establish the home and administer the trust for the purpose intended, nor did it impose enforceable duties upon any person or legal entity with capacity to take and hold the property and administer the gift for a charitable purpose.
Under those circumstances, evidence concerning matters which occurred after the will was executed with respect to plans for a home for the aged and of the formation of a corporation after the testatrix’ death, was incompetent as bearing upon the construction of the will. This court has repeatedly held that extrinsic evidence is not admissible to show the intention of the testator where there is no ambiguity in the language used or to give the language of the will a different meaning from that which the law attributes thereto. Rules of construction are inapplicable where the terms of a will are explicit. (Baldwin v. Hambleton, 196 Kan. 353, 411 P. 2d 626, and cases cited.) In short, the language of the will is clear and unambiguous — merely leaving the property to the proposed Nellie Loomis Memorial Home for the Aged which is not in existence. The cases cited by the appellee are of little persuasion.
The power to dispose of property by a will is limited to the extent that the disposition by will must be to some person or persons or legal entity in existence either at the time of the death of the testator or when the gift would vest under the will. (Gardner v. Anderson, Trustee, 114 Kan. 778, 227 Pac. 743; Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, 44 L. R. A. n. s. 544, ann. cas. 1914A 592, affirmed 89 Kan. 4, 130 Pac. 691, 44 L. R. A. n. s. 549, ann. cas. 1914C 654; 1 Rartlett, Kansas Probate Law and Practice, Rev. Ed. § 372, p. 438; 94 C. J. S., Wills, § 95, p. 800.) A will speaks from the time of the testator’s death unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing. (In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724; In re Estate of Works, 168 Kan. 539, 213 P. 2d 998; Reetz v. Sims, 177 Kan. 143, 146, 147, 276 P. 2d 368.) The capacity of a devisee or legatee to take a present vested interest is to be judged as of the time of the death of the testator and must exist at that time in order for the gift to be valid. (Reetz v. Sims, supra, p. 147; Carr v. Hart, supra; In re Korzeniewska’s Estate, supra; Meyers, et al. v. Teichman, et al., 219 Miss. 860, 70 So. 2d 17; 94 C. J. S., Wills, § 94, p. 799.)
While it is the duty of courts to uphold a testator’s will where that is possible, and construe its provisions so as to effect the testator’s intention, a devise of property to a nonexistent entity which is incapable of taking, is void.
Applying the foregoing rules, we must conclude there is absolutely nothing in the testatrix’ will as tending to show any manifestation of intention to devote the property devised in the residuary clause to charitable purposes and the requisite acts of creating a charitable trust have not been performed. The result is, the devise of the residue of the testatrix’ estate to the proposed Nellie Loomis Memorial Home for the Aged, which does not exist, was of no effect because there was no devisee with capacity to take the property at the time of the testatrix’ death, and not being otherwise disposed of by will, the residue passed to her heirs at law in accordance with the laws of descent and distribution.
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from the summary denial of the appellants motion filed pursuant to K. S. A. 60-1507 to set aside his voluntary pleas of guilty to two counts of forgery and two counts of passing and uttering forged instruments.
On July 7, 1965, the appellant was arrested in Republic County, brought before a Magistrate, and waived his right to a preliminary examination without the assistance of counsel.
On August 9, 1965, following the filing of an information in the district court charging the four counts above referred to, an experienced member of the Republic County Bar was appointed to represent the appellant. No mention of a bond was made when the appellant appeared before the court.
On September 13, 1965, the appellant, with his counsel, appeared in the district court where he waived formal arraignment. The record conclusively shows that the appellant voluntarily entered pleas of guilty to each of the charges alleged against him, and that he was satisfied with the representation given him by his attorney.
Complaint is made here that the appellant was denied bond in the district court; that he was not guilty of counts Nos. 1 and 3 of the information charging forgery of written instruments, and that his pleas of guilty were coerced by threats of invoking the Kansas Habitual Criminal Act in the event he stood trial.
We are of the opinion the district court did not err in concluding that the allegations of the appellant’s motion and the files and records of the case conclusively showed he was entitled to no relief. The motion contained no substantial issues of fact and no further discussion of the appeal is warranted. This court has considered points raised by the appellant and the reader is referred to Fields v. State, 195 Kan. 718, 408 P. 2d 674; McCall v. State, 196 Kan. 411, 411 P. 2d 647; Perry v. State, 200 Kan. 690, 438 P. 2d 83; State v. Kilpatrick, 201 Kan. 6, Syl. ¶ 3, 439 P. 2d 99; Wisely v. State, 201 Kan. 377, 440 P. 2d 632, and Stiles v. State, 201 Kan. 387, 440 P. 2d 592.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appeal is from the district court’s judgment that the order of the probate court admitting the last will and testament of Rosa C. Harper, deceased, to probate in Douglas County and appointing the Lawrence National Bank, Lawrence, Kansas, as executor, was not only proper, but required.
Rosa C. Harper duly executed her last will and testament in Douglas County on October 12, 1962, and named the Lawrence National Bank as her executor to serve without bond. She devised her estate, after payment of debts and other expenses, to her three daughters and two grandchildren, being children of a deceased daughter, who were all of age and who resided outside the state of Kansas.
On October 4, 1967, the testatrix died, leaving as her entire estate personal property of the estimated value of $150,000. The estate contained no real estate, and was free from debt.
On October 6, 1967, the decedent’s three surviving daughters wrote the bank that they were cognizant of the will their mother executed on October 12, 1962, in which she named the bank as executor of her estate, and that:
“We hereby request The Lawrence National Bank to retain Robert B. Oyler as attorney for the bank in the probating of the will and the handling of her estate.”
Thereafter, on October 20, 1967, the bank’s reply to their letter of October 6, 1967, requesting it retain Robert B. Oyler as attorney in the probating of their mother’s estate reads in part as follows:
“The policy of the Lawrence National Bank is to retain the attorney who prepared the will, which in this case is Forrest A. Jackson, Lawrence, Kansas.”
On October 23, 1967, the bank filed its verified petition in the probate court to probate the will of Rosa C. Harper, deceased, and for its appointment as executor, and, among other things, alleged the following:
“That the said Rosa C. Harper left surviving as her sole and only heirs at law the following:
“Elizabeth Harper Hood, a daughter;
“Margaret Harper Snow, a daughter;
“Carolyn Harper McGuire, a daughter;
“Karen Dooley Bower, a grand daughter; and,
“Peter Chamberlin Dooley, a grandson.
“That the decedent had no spouse or children or adopted children or issue of deceased children, natural or adopted, who survived her, other than the persons above named.”
It further alleged that the decedent’s original will was in the possession and custody of Robert B. Oyler, which necessitated attaching a copy thereof to its petition. The petition was set for hearing on November 16, 1967, at 10:00 a. m. and notice by publication and by mail was duly given.
On November 14, 1967, Mr. Oyler was served with a subpoena a duces tecum in which he was commanded to appear before the probate court on November 16, 1967, with the decedent’s original will. On that date, Mr. Oyler produced the will and it was filed in the probate court.
On November 10, 1967, all of the beneficiaries named in the decedent’s will filed written defenses and objections to the bank’s petition alleging, among other things, that they were the sole and only heirs at law of the decedent; that as her sole heirs at law each would take a share of her estate under the statutes of descent and distribution in exactly the same proportions as devised in the will; that there were no creditors of the estate and all bills owing had been paid; that as the beneficiaries and decedent’s sole heirs at law, they had arrived at a full and complete family settlement agreement for the distribution of the estate; that the family agreement had been reduced to writing and signed by all the heirs, devisees and parties in interest; that the property of the estate consisted solely of personal property and there was no necessity or reason for probating or administering the estate; that all parties in interest had agreed that the estate should not be probated or administered and that the last will and testament of Rosa C. Harper, deceased, should not be admitted to probate. A copy of the family settlement agreement was attached to the pleading and made a part thereof, and it was further alleged all that was necessary as far as the decedent’s estate was concerned was a finding of descent at the end of one year after her death. The prayer was that the court refuse probate of the decedent’s will and dismiss the bank’s petition for probate.
The instrument attached to the beneficiaries’ defenses and objections to admitting the will to probate was entitled “agreement” and reads:
“Whereas, Rosa C. Harper, also known as Rosa Chamberlain Harper, died in Kansas City, Missouri, on October 4,1967; and
“Whereas, Rosa C. Harper left as her sole heirs at law the following named persons, all of legal age:
“Elizabeth Harper Hood, her daughter;
“Margaret Harper Snow, her daughter;
“Carolyn Harper McGuire, her daughter;
“Karen Dooley Bower, her granddaughter;
“Peter Chamberlain Dooley, her grandson,
the last two named persons being children of Helen Harper Dooley, a predeceased daughter of Rosa C. Harper; and
“Whereas, under the laws of descent and distribution of the State of Kansas, the estate of Rosa C. Harper would descend to the following named persons in the following proportions:
“Elizabeth Harper Hood, an undivided one-fourth;
“Margaret Harper Snow, an undivided one-fourth;
“Carolyn Harper McGuire, an undivided one-fourth;
“Karen Dooley Bower, an undivided one-eighth;
“Peter Chamberlain Dooley, an undivided one-eighth; and
“Whereas, the said Rosa C. Harper left a last will and testament, dated !October 12, 1962, and by the terms of her said will, she devised and bequeathed her property as follows:
“Elizabeth Harper Hood, an undivided one-fourth;
“Margaret Harper Snow, an undivided one-fourth;
“Carolyn Harper McGuire, an undivided one-fourth;
“Karen Dooley Bower, an undivided one-eighth;
“Peter Chamberlain Dooley, an undivided one-eighth, which is exactly the same distribution that the heirs of Rosa C. Harper would take under the laws of descent and distribution of the State of Kansas; and
“Whereas, Rosa C. Harper owned no real estate at the time of her death, and all of tire assets of her estate are liquid assets, consisting of stocks, bonds, cash and savings accounts; and
“Whereas, all of the debts of Rosa C. Harper have been paid in full; and
“Whereas, Rosa C. Harper was a resident of Douglas County, Kansas, at the time of her death; and
“Whereas, there is no necessity to probate the will of Rosa C. Harper in order to determine state inheritance tax or federal estate tax; and
“Whereas, the heirs of Rosa C. Harper will save several thousand dollars by not probating the will of Rosa C. Harper;
“Now, Therefore, it is agreed as a family settlement by and between all of the heirs, devisees and legatees of Rosa C. Harper, deceased, as herein named, in consideration of the mutual agreement of the parties hereto and of the additional amount of several thousand dollars which will be available for distribution to them by reduction of the probate court costs and expenses of administration under the procedure hereinafter provided for, that the last will and testament shall not be probated in Douglas County, Kansas, or in any other county in the State of Kansas, or any other state; that the assets of Rosa C. Harper shall remain to accumulate for one year, and that after one year from the date of death of Rosa C. Harper, a determination of descent as provided by the laws of the State of Kansas shall be brought in Douglas County, Kansas, and all of her property, after payment of legal fees, court costs and taxes, shall be distributed as follows:
“Elizabeth Harper Hood, an undivided one-fourth;
“Margaret Harper Snow, an undivided one-fourth;
“Carolyn Harper McGuire, an undivided one-fourth;
“Karen Dooley Bower, an undivided one-eighth;
“Peter Chamberlain Dooley, an undivided one-eighth.
Parties hereto further agree that Robert B. Oyler be and he is hereby retained to assist in the making out of income tax returns for Rosa C. Harper from January 1, 1967 to October 4, 1967; to assist in making out income tax returns on the estate from October 4, 1967 to October 1, 1968; and that he also prepared the federal estate tax return and the Kansas state inheritance tax return; that he commence and complete a determination of descent proceeding in Douglas County, Kansas, which will be started one year from the date of death of Rosa C. Harper, and that he assist in the transferring and assigning of the property to the heirs of Rosa C. Harper as herein provided.
“Parties hereto further agree that the said Robert B. Oyler be and he is hereby authorized to oppose and contest any effort made to probate the last will and testament of said decedent, and that he is hereby authorized and directed to retain any attorney in Lawrence, Kansas, to assist him in such a contest, provided that Robert B. Oyler pay out of his fee the fee for the services of such other attorney so retained.”
The family settlement agreement was dated October 28, 1967, and was circulated for execution, which was completed between that date and November 6, 1967, being signed by all the beneficiaries and heirs at law and duly acknowledged by them in states other than the state of Kansas and in a province of Canada. The bank, as the named executor, did not sign the agreement to withhold the will from probate.
The bank filed its reply to the beneficiaries’ defenses and objections and alleged that the decedent’s three daughters made a written request to the bank to probate the decedent’s will; that in keeping with its policy, the attorney who drew the will had been retained by the bank as the executor of the decedent’s will; that the Harper family agreement, “is an agreement for suppression of will, in violation of Kansas law and against public policy and is null and void and unenforceable”; that the administration and conservation of the assets of the decedent’s estate was necessary and proper; that all assets including stocks, bonds, money, savings and all other assets should be inventoried and appraised; that federal and state income tax returns should be made; that the Kansas inheritance taxes and federal estate taxes should be determined and paid; that there is a period of nine months within which claims may be filed against the estate following the first publication of notice of appointment; that it had not been determined who were all of the alleged interested parties in the decedent’s estate, and that the testatrix had a right to direct the method of management and disposal of her property after her death, which the court cannot be compelled to disregard. The bank renewed its prayer for the probate of the will and its appointment as executor.
At the hearing of the bank’s petition to probate the will, the probate court heard arguments of counsel, requested briefs, and continued the hearing until December 4, 1967. On that date, the defenses and objections of the beneficiaries were rejected, and upon proof of the will, it was admitted to probate. The bank was appointed executor to serve without bond, and upon filing its oath, letters testamentary were issued.
The beneficiaries timely appealed to the district court and filed an application to prohibit and restrain the bank from proceeding to act as executor. The ex parte order was refused, and the case was set for hearing on its merits on December 14,1967.
On December 29, 1967, the district court filed a memorandum opinion and entered judgment that the order of the probate court admitting the will to probate and appointing the bank as executor was not only proper, but was required.
At the outset, we wish to make it clear that no question is presented respecting the validity of the execution of Rosa C. Harper’s will or of any claim she lacked testamentary capacity to execute the same on October 12,1962.
Turning to the legal questions presented, the appellants contend that the family settlement agreement was valid and authorized the withholding of the decedent’s will from probate and that proceedings for determination of descent in lieu of full probate are available, adequate and proper. They further contend that the bank’s petition for probate of the decedent’s will was based upon insufficient grounds since it was not shown the family settlement agreement constituted an illegal or improper withholding of the decedent’s will from probate. In support of their contentions they argue that family settlement agreements are favorites of the law and may provide for distribution either in accordance with or contrary to the will and that such agreements may dispense with the probate of the will and that the assent of the executor named therein is not required. They cite and rely mainly upon In re Estate of Swanson, 239 Iowa 294, 31 N. W. 2d 385. They argue there is a vital distinction between the suppression of a will in violation of K. S. A. 59-618 by any person who has possession or knowledge of such will and access to it and who knowingly withholds it from probate, and a family settlement agreement not to probate the will where it has been produced to the probate court and there is no element of deception as to the existence of the will.
The appellants further argue there is no criminal penalty under K. S. A. 59-618, and, in fact, the only penalty under the statute is that any person who knowingly withholds a will from probate for more than one year may not take thereunder, and that the appellants could not be so penalized since their share is the same either under testacy or intestacy; that there was no concealment or improper withholding of the will which was actually before the court on November 16,1967, when the bank’s petition was heard; that the appointment of an executor was not necessary for administration and conservation of the assets of the estate, or to enable creditors to file their claims within the prescribed period since there were no creditors by whom claims could be filed as all obligations, including the funeral expenses, had been paid; that an executor was not necessary to determine and satisfy state and federal estate taxes since provision is made in Kansas for the determination of inheritance taxes without probate or administration and that K. S. A. 59-2251 relating to the determination of descent provides for a tax finding prior to a final descent; that the only duty devolving upon the executor was the preservation and distribution of fixed assets which could be performed by the administrator designated in the family settlement agreement and the bank could do nothing more than serve as a mere conduit to transmit to the beneficiaries those assets since the will created no trust, and that the bank as the named executor had no pecuniary interest in the estate other than that of administration.
In conformity with the request of the three daughters two days after the death of the decedent, and knowing of the existence of the will and of its nomination as executor, the bank filed its verified petition in the probate court, prayed that the will might be proved, and caused it to be set for hearing and notice thereof was duly given. In the meantime, the beneficiaries and heirs at law decided that probate of the will be opposed and the family settlement agreement to withhold the will from probate was prepared, signed and acknowledged and filed with their defenses and objections to the admission of the will to probate. This occurred prior to the hearing of the bank’s petition to probate the will. Upon this state of the record, was the Harper family settlement agreement a valid defense to the probate of the will? A majority of the court is of the opinion it was not.
The appellants concede the petition to probate the will was sufficient in form to comply with the requirements of K. S. A. 59-2220 (all references hereafter are to Kansas Statutes Annotated unless otherwise noted), and no claim is made that the bank as the named executor was not authorized to file a petition for probate of the will. In In re Estate of Smith, 168 Kan. 210, 212 P. 2d 322, it was held that a person named as executor in a will is a “person interested in the estate” of the decedent and qualified under 59-2221 to petition for probate of the will or for administration. Moreover, under our own early decisions and various provisions of the probate code and cases construing them, it was the duty of the bank as the named executor in the will to present it for probate and endeavor to procure its admission. In In re Estate of Hooper, 144 Kan. 549, 555, 61 P. 2d 1335, it was said:
“. . . The executor was named in the will. It was his duty to offer the will for probate. It was necessary that this should be done for the benefit of all concerned. . . .” (1. c. 555.)
See, also, In re Estate of Smith, supra, p. 213, and In re Estate of O’Leary, 180 Kan. 419, 421, 304 P. 2d 547.
The law of Kansas gives to every person competent to do so, the right to make a will, and to select someone in whom he has confidence to execute it. It is easy to conceive of many valid wills which the parties directly interested might not care to have probated, but that appears to furnish no reason for suppressing or withholding from probate such an instrument. In this state no will shall be effectual to pass real or personal property unless it shall have been duly admitted to probate (59-616), and application for probate is required to be made within one year after the death of the testator. (59-617.) It is the policy of our law that all wills shall be delivered to the probate court having jurisdiction as soon after the death of the testator as is possible. Our statutes relating to the subject are 59-618, 59-620 and 59-621. The provisions of 59-618 bars any beneficiary from all rights under a will who has possession of it, or has knowledge of its existence and access to it for the purpose of probate, and knowingly withholds it from probate for more than one year. The bar prescribed by the statute does not arise by reason of the act of the testator as to whether it was executed in the manner prescribed by law, but because of the act of the beneficiary in failing to have it probated or offered for probate within the required time. (Moore v. Samuelson, 107 Kan. 744, 193 Pac. 369; Wohlfort v. Wohlfort, 123 Kan. 142, 254 Pac. 334; Marr v. Barnes, 126 Kan. 84, 267 Pac. 9; Swisher v. McMain, 153 Kan. 401, 110 P. 2d 765.) The provisions of 59-621 place the positive duty upon any person having custody of a will to deliver it to the court having jurisdiction to probate it (In re Estate of Morgans, 188 Kan. 50, 57, 360 P. 2d 1069), and the court may compel a person having the custody of the will to produce it for the purpose of having it proved. These statutes express the legislative intent that the will of every person shall be offered for probate. They decree there is a clear public policy in the establishment of every legally executed will. That policy requires the probate of a will, not its suppression or to withhold it from probate.
In the instant case, the probate court ordered the person having custody of the decedent’s will to produce it in court which was complied with, and the will was filed of record. The probate court did not order the will produced in court for inspection, but for the purpose of being proved. (Pee v. Carlyle, 120 Kan. 200, 243 Pac. 296; 2 Bartlett’s Kansas Probate Law and Practice, § 545, p. 47.) The privilege to make a will would be a barren privilege if it did not extend to probate, and when the will was produced by the custodian it was the duty of the probate court to notify the executor or others interested in the will and to proceed upon the bank’s petition, irrespective of the attitude of the beneficiaries, to find if the will was freely executed by a competent person as her will and was duly witnessed.
In the Fee case it was said:
. . The proceeding is in rem, executor, proponent, devisee, legatee, or other person interested is not a party in the sense that he has authority to withdraw the subject matter from the court’s jurisdiction, and there can be no nonsuit. (Citations.) If it shall appear that the will was duly executed and attested, and that the testator possessed the requisite testamentary capacity and was under no restraint, the court shall admit the will to probate. (R. S. 22-218.) The law does that much for the dead man. . . .” (1. c. 202, 203.)
It was further said:
“■ . . In a proceeding to probate a will, the inquiry is limited to the single subject, is the instrument a will? If so, it is entitled to probate; if not, it is not entitled to probate. A will has no effect other than potentiality until it has been probated. If probate be refused, the instrument cannot serve as foundation of a claim to property. If the instrument be admitted to probate, claims to property may be based upon it . . .” (1. c. 203.)
While the Fee case was decided prior to the adoption of the present probate code, after the enactment of the code the case was cited with approval in In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824, In re Estate of Osborn, 167 Kan. 656, 208 P. 2d 257, and In re Estate of Smith, supra. In In re Estate of Reed, supra, it was held:
“In a proceeding to probate a will the inquiry is limited to the question whether such instrument is entitled to probate and prior to the determination of that issue orders relating to proceedings incident thereto are not res judicata.” (Syl. 13.)
In In re Estate of Osborn, supra, it was held:
“In a proceeding to probate a will, the inquiry is limited to the single question whether such instrument is entitled to probate.” (Syl. f 2.)
In In re Estate of O’Leary, supra, it was said:
“In conclusion, the only issue to be determined at this stage of the proceedings is that set out in 3 Bartlett’s Probate Law and Practice, § 1237, where it is said:
“ ‘On a hearing for the probate of a will the burden of proof is upon the proponent of the will to show: (1) the testamentary character of the instrument, (2) the testamentary capacity of the testator, and (3) the due execution of the will in accordance with statutory requirements.’ (p. 88.)” (1. c. 422.)
We agree with the appellants that family settlement agreements are favorites of the law and that beneficiaries under a will have a right to agree among themselves upon a distribution of the estate contrary to a disposition made under the will or to abrogate the will, and such an agreement containing the mutual promises of the contracting parties is based upon a sufficient consideration. The foregoing rule has been so frequently and forcefully stated that the marshalling of our many decisions on the point is unnecessary and we cite only a few. (Riffe v. Walton, 105 Kan. 227, 182 Pac. 640; West v. West, 135 Kan. 223, 9 P. 2d 981; Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021, 97 A. L. R. 463; Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396.) There are at least two exceptions which limit the rule permitting family settlement agreements. First, that beneficiaries under a will cannot defeat a trust or specific restriction placed upon the property in the testator’s will, and second, such an agreement may not deprive one not a party thereto of his interest in the estate or prejudice the rights of nonconsenting creditors. (Myers v. Noble, supra; Brent v. McDonald, supra.)
Neither of the foregoing exceptions is applicable in the case at bar. The will created no trust; all of the beneficiaries and heirs at law of the decedent are parties to the family agreement, and they alleged, which was not denied, there were no creditors. However, the foregoing rule is applicable only in testate estates after the will of the decedent has been duly proved and admitted to probate. As indicated, our statutes relating to probate of a will decree a clear public policy in the establishment of every legally executed will, and we hold that the probate court did not have the authority to determine the validity or approve the Harper family agreement at the time of hearing the bank’s petition to admit the decedent’s will to probate (In re Estate of Osborn, supra), and that such agreement to withhold the will from probate was not a valid or proper defense to that probate proceeding.
It is not contended the Harper family settlement agreement was invalid. In order to obtain a decree of final settlement and an assignment of the personal property in accordance with its provisions, it would be necessary to have the agreement submitted to and approved by the probate court. (Brent v. McDonald, supra; In re Estate of Hinshaw, 164 Kan. 550, 190 P. 2d 386.)
We note the appellee’s contention that it was an interested party in the estate and since it did not sign the Harper family settlement agreements to withhold the will from probate, the agreement was ineffective and was not binding upon the executor named in the will. The point is not well taken. The nomination of an executor is a part of a decedent’s will. (In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580.) Unlike an heir at law, a devisee, a legatee, or a creditor of the decedent, the bank had no pecuniary interest in the distribution of the estate of which it was deprived by the family settlement agreement. The fact that it was nominated as executor and had the right and duty to petition for probate of the will, and would be compensated when appointed, gave it no such pecuniary interest. Its interest in the estate after appointment as executor, aside from its duty to faithfully serve as such fiduciary, was for reasonable compensation only in return for services rendered. (In re Estate of Smith, supra.)
In view of what has been said, it is unnecessary to pass upon the appellant’s contention that the provisions of our statute (59-2251) relating to the determination of descent are available, adequate and proper. The will of the decedent has been admitted to probate, the bank appointed as executor, and the estate is in the process of administration. In view of that fact, the limitation of the issues on this appeal does not require any further discussion pertaining to the administration of the estate.
We have fully considered the authorities and decisions from foreign jurisdictions cited by the appellants holding that beneficiaries under a will may enter into a family settlement agreement not to probate the will and have the estate distributed as intestate or in any manner they see fit (In re Estate of Swanson, supra; Henry v. Spurlin, 277 Ky. 114, 125 S. W. 2d 992; Martin Estate, 349 Pa. 255, 36 A. 2d 786; In re Will of Pendergrass, 251 N. C. 737, 112 S. E. 2d 562; 57 Am. Jur., Wills, § 1013, p. 657; Anno. 117 A. L. R. 1252), but in view of what has been said and held, we are of the-opinion that whatever the rule may be elsewhere, those authorities are not controlling in this jurisdiction, and it follows that the Harper family settlement agreement constituted no valid defense to the probate of the decedent’s will.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Mose W. Sanders was convicted of first degree robbery by a jury. He was sentenced as an habitual criminal by the court. The term of sentence was fixed at not less than fifteen and not more than sixty-three years. He appeals from conviction and sentence.
The Big Joy Burger Drive-In at 10th and Reynolds in Kansas City, Kansas, was the scene of the crime. At 10:45 p. m. on April 17, 1966, a black man wearing a dark overcoat and sun glasses walked up to the counter and ordered a hamburger. A black bandana was tied around his forehead and covered his hair. When the order was delivered he pointed a small gun at the waitress and demanded money from the cash register. He received the money, placed it in the sack with his hamburger and fled on foot.
Police officers who were within a block of the drive-in received a radio message that the robbery was in progress. When they arrived the robber had fled. The officers arrived in two patrol cars. They obtained a description of the robber and details of the crime. The two patrol cars separated and proceeded around the block in opposite directions. They converged on the defendant who was crouched behind a car parked near the curbing. Defendant was apprehended at approximately 11:15 p. m. A black silk scarf was found in his pocket. A dark coat was discovered under the parked car and contained the sack and a small gun. The sack contained $170. The coat was found in close proximity to where defendant was crouching. The name M. W. Sanders was marked in the “tail” of the coat.
The defendant, Mose W. Sanders, was taken directly to police headquarters but denied knowledge and ownership of the coat. Two waitresses who witnessed the robbery at the drive-in were notified to come to the police station to identify the evidence and “look at a man.” Several police officers and the defendant were together in one room. The two waitresses viewed them from an adjoining room through a glass window which limited vision to one way. One of the police officers held up the dark coat and asked defendant if it was his. The defendant said it was not. Both waitresses identified the defendant as the robber. They noticed a crease on his forehead such as might be left by a tight head scarf. This all occurred within an hour of the robbery. Charges were filed later and a conviction resulted.
The defendant specifies various trial errors which we will treat separately.
Defendant contends it was error to admit the testimony of the waitresses who made a positive identification of the defendant in court. He argues this identification was founded on a previous viewing of the suspect which occurred before he was advised of his constitutional rights and in the absence of an attorney. The defendant relies on United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
The contention is without merit. The waitresses as witnesses for the prosecution identified the defendant as the robber. No objection was made to the admission of this testimony during the trial and it was not claimed as error in the motion for new trial. K. S. A. 60-404 requires a contemporaneous objection be interposed stating the specific ground of objection to any testimony. Instead of lodging such an objection defendant chose to wait and cross-examine the witnesses as to the manner and means by which they identified defendant.
We are aware of the federal cases which hold a state procedural default does not bar a federal court from considering constitutional claims. (Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822; Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564.) Nevertheless when a defendant deliberately bypasses the orderly procedure established in a state court for raising constitutional claims and when testimony in court on identification of the defendant is offered and received without objection a trial court is afforded no opportunity to comply with the directions in Wade and Gilbert. In such case the trial court has no way of knowing there has been a pre-trial lineup or identification until after the testimony is admitted. Here the defendant deliberately bypassed the orderly procedure provided by K. S. A. 60-408 for determining the question of admissibility. Defendant made no contemporaneous objection to the in-court identification. Instead he chose to fully explore the circumstances of the pre-trial identification in the presence of the jury by cross-examination. At no time during the proceedings did he raise tibe Wade and Gilbert question of admissibility.
Under these circumstances defendant’s failure to object to the in-court identification must be considered a part of defense strategy and he is precluded from raising the question on appeal. Many cases on this subject can be found in Vol. 1, Hatcher’s Kansas Digest (Rev. Ed.), Appeal & Error §333, p. 158. These cases are supported by the recent holding in Mize v. Crouse, (C. A. 10th) 399 F. 2d 593 (1968).
The testimony given on cross-examination clearly establishes the in-court identification of defendant was based upon prior acquaintance with the defendant and upon observation of him during the robbery. The witnesses remembered that defendant had been to the drive-in prior to the robbery. The night before the robbery he was seen wearing the same distinctive black bandana.
In United States v. Wade, supra, it was said:
“We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 US 52, 79, note 18, 12 L. Ed 2d 678, 695, 84 S. Ct. 1594. Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified.” (388 U. S. 239, 240.)
In Gilbert v. California, supra, it was said:
“. . . [A]s in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.” (388 U. S. 272.)
Assuming the pre-trial identification of defendant was a critical stage of the proceedings at which counsel should have been present, the record before us clearly establishes the in-court identification of the accused had an independent source established by the cross-examination testimony of the witnesses appearing in the record of the trial. Therefore the determination required in Wade and Gilbert has been made and no further proceedings appear necessary to establish the independent source required of the in-court identifications. The absence of counsel at the pre-trial identification was harmless error. (K. S. A. 60-261.)
A final reason appears why defendant’s contention is without merit. The rule in Wade and Gilbert is not retroactive and applies only to confrontations for identification purposes conducted after June 12, 1967, the date of those decisions. (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. LeVier, 202 Kan. 544, 451 P. 2d 142.) The confrontation in the present case occurred on April 17, 1966.
Defendant next contends the pre-trial identification was a lineup held under such circumstances as to amount to a denial of due process of law. He urges this independently of the “right to counsel claim” discussed in Wade and Gilbert. Palmer v. Peyton, 359 F. 2d 199 (C. A. 4th Cir. 1966) is cited as supporting authority.
Such an attack is based upon a totality of the circumstances bearing upon identification of the accused with the particular crime. If the procedure employed to obtain such identification fails to meet those “canons of decency and fairness established as part of the fundamental law of the land” the United States Supreme Court has said due process of law has been denied. (See Stovall v. Denno, supra, which cites Palmer v. Peyton, supra.)
However in Stovall identification of the accused from a hospital bed was held not to be a denial of due process of law under a totality of the circumstances. The Palmer case is easily distinguished on the facts. In Palmer a pre-trial identification of voice only was obtained by the police under questionable conditions. This was the only evidence linking the suspect to the crime. The witness did not make a direct identification of the defendant in court. She merely testified she identified the voice of the defendant at the police station.
There was substantial evidence in our present case connecting defendant with the robbery. The arresting officers testified defendant was apprehended near the scene of the crime. He was apprehended within thirty minutes after the robbery occurred. He attempted to avoid detection by crouching beside a parked car. He had the black scarf in his pocket and the marked coat containing the gun and sack was beside him. The waitresses made a positive in-court identification of the defendant. This identification was independent of the identification at the police station. There has been no violation of the “canons of decency and fairness” in the identification of defendant with this robbery. Due process of law was not denied.
Defendant next argues the court erred in permitting unfair comment in the closing argument of the assistant county attorney. The alleged erroneous statements by Miss Daily were to the effect that defendant had tossed something under the vehicle; the witnesses had seen the same man the night before dressed in the dark coat and the name “Mose Wesley Sanders” was inside the coat found under the automobile.
Defendant says no witness saw the defendant toss anything under the vehicle; only one of the waitresses testified defendant was wearing a dark coat the night before the robbery and the name inside the coat was M. W. Sanders not Mose Wesley Sanders.
Although the statements made in oral argument were not specifically proven by the evidence, the facts stated could reasonably be inferred therefrom. These comments did not go beyond the scope of legitimate argument. They were based upon facts either disclosed by the evidence or inferable therefrom. (State v. Gauger, 200 Kan. 515, 438 P. 2d 455; State v. McDermott, 202 Kan. 399, 449 P. 2d 545.)
Defendant says he was improperly sentenced under K. S. A. 21-107a because a maximum sentence of sixty-three years was imposed by the court. He argues the sentence should have been for not less than fifteen years without a maximum number of years fixed.
We have held otherwise. The provision for minimum sentence of not less than fifteen years in the Habitual Criminal Act (K. S. A. 21-107a) when read in connection with K. S. A. 21-109 allows a maximum sentence for life or for any number of years not less than the prescribed minimum. (Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582; State v. Wood, 190 Kan. 778, 378 P. 2d 536; State v. Akins, 194 Kan. 514, 399 P. 2d 848.) This was defendants third conviction of felony. The sentence imposed of not less than fifteen and not more than sixty-three years was proper.
Defendant specifies error in overruling his motion for a new trial. What has been previously said in this opinion disposes of the arguments presented on this point.
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The opinion of the court was delivered by
Harman, C.:
Appellant, under sentence for the offense of felonious assault, seeks in this postconviction proceeding to overturn an adverse judgment rendered after full evidentiary hearing.
John Peter Knouf was wounded by shotgun pellets on February 3, 1964, in Bourbon county, Kansas. On the same day appellant was arrested and incarcerated in the Bourbon county jail. Nine days later he was formally charged with assault with a deadly weapon with intent to kill Knouf. Eventually, and while represented by retained counsel, he waived jury trial, was tried by the court, found guilty and given the sentence which is the subject of this attack.
Appellant’s first complaint stems from a search and seizure of the shotgun allegedly used by him, admitted, without objection, as evidence against him at trial. He asserts the search and seizure was violative of his constitutional rights.
The facts appear to be as follows: At some time following appellant’s arrest, police officers were led by a youth named Garrison to a shed or garage located on premises owned by a Mrs. Blanche Lesher and there they seized the shotgun. No one was on the property at the time. The officers did not have a search warrant nor did they have authorization or permission from Mrs. Lesher to mate the search.
Appellant’s assertion of constitutional invasion is based on his testimony in the postconviction hearing that Blanche Lesher was his common law wife. He says he therefore had such proprietary interest in the property searched as to enable him to raise the constitutional question. He argues his testimony as to the common law marital relation was uncontroverted in any way and therefore must be accepted as true.
Dealing first with this approach and passing our rule that the movant in a postconviction proceeding has the burden of establishing his grounds for relief by a preponderance of the evidence and that the uncorroborated statements of the movant shall be insufficient to sustain the burden of proof (Rule No. 121 [g], 197 Kan. LXXV), and the fact that appellant’s testimony of common law marriage was wholly uncorroborated, we cannot agree with appellant’s contention that his testimony was uncontroverted. The trial court had before it the testimony of several witnesses describing the premises as belonging to Mrs. Lesher — not Mrs. Wheeler. These witnesses included not only the officers but also the informant who allegedly was with appellant at the time appellant disposed of the gun. More importantly, Mrs. Lesher testified at the post-conviction hearing. She did not identify herself as being at any time the wife of appellant. To the contrary, throughout the entire proceeding she was referred to and identified by all witnesses, including herself, as Mrs. Lesher. Thus, treating the issue of appellant’s marital status as one of fact, as must be done, there was ample evidence to sustain the trial court’s finding that the premises searched were the property of Mrs. Blanche Lesher and that appellant had no interest therein. The finding completely negatived appellant’s claim to marital ties.
It is elemental that one who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure (State v. Edwards, 197 Kan. 146, 415 P. 2d 231).
Marital status being the sole basis of appellant’s assertion of constitutional privilege, once this issue of fact is decided against him, his capacity to invoke the privilege falls.
Appellant contends he was denied speedy trial because of the nine days’ detention between initial arrest and the filing of formal charges against him and the fact he apparently was not brought before a magistrate until the further lapse of either three or six more days.
The state suggests no reason or excuse for this excessive delay and indeed we can scarcely conceive of any of validity for a detention of this length without shred of legal process. A similar situation was discussed in Cooper v. State, 196 Kan. 421, 411 P. 2d 652, as follows:
“Needless to say, this court does not approve of unwarranted delay, either in the filing of formal charges against a suspect who is confined in jail, or in taking him before a proper magistrate for examination. We subscribe to the prevailing view that when a person is arrested for a crime, either with or without a warrant, he is to be taken before a magistrate with reasonable promptness and without unnecessary delay. [Citations.!
“The state makes no attempt to justify its failure to take the plaintiff before an examining magistrate until after he had languished in jail for nearly two weeks. Unexplained, a delay of such proportions indicates indifference on the part of law enforcement officers toward their official responsibilities. It also infringes the right of every person arrested for a crime to an early examination before a magistrate (K. S. A. 62-610, 62-614). We are not disposed to condone such official shortcoming.
“The present action, however, is not one to test the validity of an arrest, nor one to recover damages for an illegal detention. Neither is it a proceeding to gain release from an unlawful custody prior to trial. This case attacks the validity of the sentence pronounced against the plaintiff, which is claimed to to be illegal on the premise, among others, that plaintiff was not promptly taken before a magistrate after his arrest.” (p. 423.)
And in denying relief because of the delay in the above case the court concluded:
“Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.” (Syl. f 1.)
In the case at bar it does not appear that during the period of unwarranted detention the state gained any advantage in its prose cution of the case or that appellant suffered any disadvantage in his defense. Appellant made no incriminating statement and he does not now point out how he was prejudiced by the delay. Although the conduct of those responsible must be condemned, the irregularity does not now afford appellant ground for relief from the sentence.
Finally, appellant attacks the procedure in magistrate court wherein he was held for trial in district court. Appellant testified he did not waive his right to preliminary examination prior to being so bound over, that he requested the services of an attorney at the time of his appearance before the magistrate and he was never afforded a preliminary examination as required by law. Appellant’s contentions were completely refuted factually by the records of the magistrate court and by the testimony of the examining magistrate to the effect that appellant’s rights were explained to him, he did not request counsel, and he waived preliminary examination in the magistrate court. Moreover, where a defendant pleads to an information and goes to trial upon it, the subject of preliminary examination is no longer material. An objection to the lack of or sufficiency of a preliminary examination after trial comes too late (State v. McCarther, 196 Kan. 665, 414 P. 2d 59).
There is no indication of prejudice to appellant’s rights resulting from absence of counsel before the magistrate; hence such lack affords no ground for relief from the sentence later imposed (Cooper v. State, supra).
The judgment appealed from is affirmed.
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The opinion of the court was delivered by
Price, C. J.:
These consolidated actions arose out of the operation of two motels on the west edge of the city of Wichita known as the Town and Country Lodge, Inc. and Western Trails Motel.
Plaintiff Groendycke is the owner-lessor of each property.
In the Town and Country case against defendant-lessees, plaintiff sought cancellation of the lease either on the ground of fraud or lack of consideration, and damages. He further sought an interpretation of the lease and determination as to the allowance of depreciation in the determination of net profits.
In the Western Trails case against defendant-lessees, plaintiff sought return of the motel property either on the ground of nonpayment of rent, or on the ground the lease was void because of fraud. He further sought damages and unpaid rental, and an interpretation of the lease.
The cases were tried by the court without a jury. Extensive findings of fact and conclusions of law were made. Judgment in each case was generally in favor of defendant-lessees. Plaintiff has appealed.
The record on appeal covers 270 pages. A detailed recital of the evidence and the facts as found by the trial court, however, would serve no useful purpose — in view of the rather narrowed issues asserted in the appeal. As an example — all questions of alleged fraud on the part of defendants are abandoned.
We first discuss the Town and Country lease, which was dated March 5, 1962. Material portions of it read—
“The term shall be for a term of 22 years commencing on the 5th day of March, 1962, and terminating on the 5 day of March, 1984, the consideration for the same to be paid by the Lessee to the Lessor in monthly payments commencing on the 1 day of April, 1962, at $4,166.66 and continuing in such amount until the 1 day of April, 1963, it being understood that such monthly rental is intended to be equal to one-twelfth of $50,000.00, less one-twelfth of one-half of the difference between $100,000.00 and the annual net profit of the motel if such annual net profit shall be less than $100,000.00, or, in the alternative, plus three-fourths of the difference between the annual net profit and $100,000.00 if such annual net profit shall be more than $100,000.00. If the annual net profit in any one year is less than $100,000.00, then the monthly payments for the subsequent year shall be adjusted accordingly and the Lessee shall receive credit on monthly payments for the overage paid during the year just completed for the subsequent year. When the annual net profit is more than $100,000.00 the difference shall be paid by the lessee to the lessor not more than thirty days after the close of the fiscal year, such year to run from the 1st day of January each year to the 1st day of January each year. It is further understood that rental paid shall not be considered in computing the net annual profit.
“8. It is further contracted and agreed that the consideration or rental above set out to be paid to the Lessor by the Lessee, is free and clear and over and above all expenses of operation, and that the lessee agrees to pay all expenses of operation, including taxes, special assessments, licenses and all other expenses, and to keep the said premises in good repair except as set out in paragraph 5 hereof.”
As to Town and Country — plaintiff owned the land and buildings. Defendant Poliak owned the furniture and fixtures, and in malting his annual accounting he deducted an amount for depreciation on the furniture and fixtures in order to determine net profit. He did not allow or deduct for plaintiff any depreciation on his (plaintiff’s) capital investment in the buildings.
As to the Town and Country lease the trial court held that depreciation on the furniture, fixtures and equipment belonging to defendants was a deductible expense in computing net profit, but that plaintiff’s depreciation on the buildings and improvements was not to be considered as expenses of operation in computing net profit.
Plaintiff’s only contention as to this is that the matter is a “two-way street” — and that depreciation either should be allowed to both parties or should be denied to both.
The trial court found — and there is evidence to support it — that throughout the dealings of the parties defendants consistently and repeatedly claimed depreciation in arriving at net profit — that plaintiff made no objection to the practice — as such — and accepted rental payments based upon the same — and that by such acquiescence is estopped to assert a contrary construction of the lease. Furthermore, the net profit formula for computation of rentals has reference only to the profits derived by defendant lessees from the operation of the motel — after deducting their expenses — one of which of course was the depreciation cost incurred through the use of the furniture and fixtures which they supplied and which were as necessary and indispensable as other operating expenses such as utilities, labor and repairs. And further, no sound reason— either in law or fact — why plaintiff should be allowed depreciation on his capital investment arising from his ownership of the buildings in arriving at the amount of rentals due him — has been advanced.
As to the depreciation feature of the dispute in connection with payment of rentals under the Town and Country lease the trial court was correct.
We turn now to the Western Trails lease, which was dated March 30, 1962. Material portions of it read—
“The term shall be for a term of 25 years commencing on the 1st day of April, 1962, and terminating on the 1st day of April, 1987, the consideration for the same to be paid by the lessees to the lessors in monthly payments com mencing on the 1st day of April, 1962, at $2,000.00 and continuing in such amount until the 1st day of April, 1987, it being understood that such monthly rental is intended to be equal to l/12th of $24,000.00, less l/12th of 1/2 of the difference between $48,000.00 and the annual net profit of the motel if such annual net profit shall be less than $48,000.00, or, in the alternative, plus 3/4ths of the difference between the annual net profit and $48,000.00 if such annual net profit shall be more than $48,000.00. If the annual net profit in any one year is less than $48,000.00 then the monthly payments for the subsequent year shall be adjusted accordingly and the lessees shall receive credit on monthly payments for the overage paid during the year just completed for the subsequent year. When the annual net profit is more than $48,000.00 the difference shall be paid by the lessees to the lessors not more than 30 days after the close of the fiscal year, such year to run from the 1st day of May, each year to the 1st day of May each year. It is further understood that rental paid shall not be considered in computing the net annual profit.” (Emphasis supplied.)
As to Western Trails — plaintiff owned the land, buildings, furniture and equipment. The trial court held that plaintiff’s depreciation on his capital investment was not to be considered as expenses of operation in computing net profit. We find nothing wrong with that. It further held that any purchases of additional or replacement equipment by defendant lessees were deductible in determining net profit because the equipment so purchased by defendants immediately became the property of plaintiff. We likewise find nothing wrong with that.
It is disclosed that right from the beginning the operation of Western Trails was not a financial success. As a result, the monthly rental of $2,000.00 for the year commencing April 1, 1962 exceeded the amount actually due based on the annual net profit for that year. Under the emphasized provision of the lease, above, defendant lessees contended they were entitled to adjust future monthly rental payments over subsequent years until such time as the “overage” paid in 1962-63 equaled the credits on the monthly rentals taken during such subsequent years. As a practical matter — their theory— as applied to the figures in question — would result in no rent being due until 1978.
The trial court agreed with that construction of the lease — for one of its conclusions of law was that “Overpayments of rental may be carried forward beyond one year.”
We believe that such construction violates the plain and unambiguous language of the lease provision in question. It plainly states that if the annual net profit in any one year is less than $48,000.00 then the monthly payments for the subsequent year shall be adjusted accordingly and the lessees are to receive credit on monthly payments for overage paid during the year just completed for the subsequent year. In other words — credit for “overage” is to be carried forward for only the subsequent year — and not beyond.
The extent of our holding is this:
As to both leases the trial court was correct in its rulings on the question of allowance of depreciation in the determination of net profit.
As to the Western Trails lease the trial court erred in ruling that overpayments of rental may be carried forward beyond the subsequent year.
What has been said disposes of questions actually raised in this appeal. It is apparent that other portions of the judgment — such as the ruling on defendants’ counter-claim and as to whether the Western Trails lease had been breached — were, in part, at least, tied in with and based upon the erroneous premise of allowance of credit for “overage” beyond the subsequent year in question. We therefore express no opinion as to such other portions of the judgment.
On the question of allowance of depreciation the ruling below is affirmed. On the question of credit for “overage” the ruling below is reversed and the case is remanded for further proceedings with directions to determine the rights and liabilities of the parties in harmony with what is here said and held. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action resulting from a state highway intersection collision involving three vehicles, wherein the jury returned a verdict in the total sum of $102,029.79 against the State Highway Commission of Kansas. Appeal has been duly perfected.
The primary question is whether a defectively installed or obstructed stop sign at the side of a state highway, designed to control approaching traffic on a county road which intersects the state highway, is a defect in the state highway which comes within the purview of G. S. 1961 Supp. (now K. S. A.) 68-419.
The majority of the members of this court hold that a stop sign on the side of a state highway, which is defectively installed or obstructed from view so that it is inefficient to convey the message intended to control traffic entering the state highway from a county road, is within the purview of 68-419, supra; that is, it is embraced within the term “defect in a state highway.”
The case was tried to a jury in the lower court on the theory that the defectively installed or obstructed stop sign in question was within the purview of the statute, and that it was a question of fact for the jury to determine from the evidence in the case upon the instructions given whether or not a defect existed in the state highway, and, if so, whether it was the proximate cause of the resulting injuries and damage.
Inasmuch as the jury resolved all fact questions in favor of the plaintiff, the facts will be stated from the evidence most favorable to the plaintiff.
The intersection in question is dangerous. A good, elevated, hard-surfaced county road known as the Coronado Bridge Road intersects a high speed state highway known as U. S. No. 154, approximately two and one-half miles east of Dodge City. The highway carries traffic from Dodge City toward Greensburg, Pratt, Kingman and Wichita. There was a stop sign on the state highway in the southeast part of the intersection within the highway right-of-way facing northbound traffic on the county road. A shelter belt on private property south of and parallel to the state highway right-of-way extended west from the county road. There was a cluster of bush-like trees or shrubs growing on the east side of the traveled portion of the county road located approximately one hundred to one hundred fifty feet south of the intersection (giving the minimum distance testified to by the witnesses) obstructing view of the stop sign. The obstruction was described by witnesses in various ways: a tree, a sort of second growth bush-like tree, a bushy tree. The size of the obstruction was not made clear by the evidence. One witness described it as being about twelve feet across and about twelve to fourteen feet high. Another described it as a slight little bush.
About noon on the 23rd day of June, 1963, William Morris Eggleston of Mt. Ida, Arkansas, an itinerant farm laborer with a blind right eye, was driving his 1953 Ford automobile north on the Coronado Bridge Road on his way to Jetmore, Kansas. At the same time Eugene Brown was driving east on U. S. Highway No. 154 with his family enroute to Bucklin. Also, Don Vogel was driving west on U. S. Highway No. 154 on his way to Dodge City. Eggleston failed to see the stop sign heretofore mentioned and drove into the intersection without stopping. He collided with the Brown automobile, thereby in turn causing it to collide with the Vogel automobile.
Mrs. Brown and one son were killed in the accident, and the other occupants of the Brown vehicle were injured.
There was no crossroad sign on U. S. Highway No. 154 warning the driver of the Brown vehicle of the crossroad in question, and there was no “stop ahead” sign placed on the county road warning travelers on the county road of the stop sign at the intersection in question.
There was testimony to the effect that the stop sign in question could not be seen by a motorist traveling north on the county road until he was even with the cluster of bush-like trees or shrubs. Eggleston testified he did not see the stop sign at all and was not aware that he was approaching an intersection of a state highway until it was too late to stop. Other witnesses who were familiar with the intersection said they stopped because they knew a stop sign was there, but the stop sign could not be seen in time to stop.
The action was filed by Eugene Brown to recover damages for the death of Evelyn Brown, for the benefit of himself as her husband and his four surviving minor children; by Eugene Brown as sole heir of Paul Kelly Brown, a minor, to recover damages for his death; by Eugene Brown as next friend of David Brown, Jacqueline Brown, Roberta Brown and Kathryn Brown, minors, to recover damages for injuries sustained by each of them; and by Eugene Brown to recover for his own injuries and damages.
The original defendants were the Board of County Commissioners of Ford County, against which damages were claimed under G. S. 1949 (now K. S. A.) 68-301 by reason of an alleged defect in a Ford County road known as the Coronado Bridge Road, and the State Highway Commission of Kansas, against which damages were claimed under 68-419, supra, by reason of an alleged defect in a state highway known as U. S. No. 154.
On the 22nd day of April, 1966, on motion of the plaintiff the action against Ford County was dismissed without prejudice. Subsequently the State Highway Commission sought leave to file and serve a third party petition interpleading Ford County as a third party defendant, but this was denied by the trial court. In the third party petition the State Highway Commission alleged, among other things:
“On June 9, 1951, an agreement was made and entered into by and between the State Highway Commission of the State of Kansas and the Ford County Commissioners of Ford County, Kansas, wherein the State Highway Com mission was to act as and did act as agent for said County to enable said County to participate in federal aid funds for secondary roads. Said agreement specifically provides a hold harmless clause for the protection of the State Highway Commission from any liability arising due to defects and ah other matters pertaining to said secondary roads. A true and exact copy is marked Exhibit 2, attached hereto and made a part hereof.”
The action was first tried in November, 1966, but the jury was discharged and a new trial ordered when the jury could not agree upon a verdict. The second trial to a jury resulted in a verdict for the plaintiff upon which judgment was entered.
Without burdening this opinion with procedural matters it may be said the State Highway Commission, by its various motions throughout the trial of the case, made a record sufficient to raise the questions hereinafter considered.
Among the admissions pertinent to this appeal disclosed by the pretrial order are the following:
“4. The defendant further admits that there was no crossroad ahead sign on No. 154 to apprise eastbound traffic of a crossroad on June 23, 1963.
“5. Defendant further admits that the maintenance department of the State Highway Commission has a duty to maintain and place traffic control devices.
“6. The defendant further admits that the Uniform Traffic Control Manual prescribes standards for traffic control devices.
“7. Defendant further admits that No. 154 is a through highway and that when stop signs are placed, they must conform to the standards set out in the Uniform Traffic Control Manual.
“8. The defendant further admits that it has an absolute duty to conform to the rules set out in this Manual.
“9. Defendant further admits that the shelter belt obstructs the vision of the northbound and eastbound traffic on the Coronado Bridge Road and No. 154 until they are in the intersection.
“10. Defendant further admits that it has a duty to place and maintain traffic control devices at this intersection.
“11. Defendant further admits that there was no stop ahead sign placed south of the stop sign in question.
“12. Plaintiff admits that the tree in question was not on state highway right of way.
“13. Plaintiff admits the state has no duty to maintain traveled portion of Coronado Bridge Road.”
The pretrial order set forth the issues of fact to be determined by the jury as follows:
“1. Was the stop sign in question erected at the height required by the ‘Manual on Uniform Traffic Control Devices’?
“2. Was the negligence of William Eggleston, the driver of the car which struck plaintiff’s car, the proximate cause of the collision and injuries to plaintiffs?
“2. (a) Was the defect a or the proximate cause of the collision?
“3. Was Eugene Brown guilty of contributory negligence?
“4. Was the negligence of Eugene Brown a proximate cause of the collision and injuries?
“5. What damages are plaintiffs entitled to recover?”
The pretrial order also set forth the following issues of law to be determined by the court:
“1. Was the condition surrounding the stop sign a highway defect as contemplated by 68-419?
“2. Once the defendant has constituted No. 154 as a through highway by the erection of stop signs, does it then have complete discretion as to the maintenance of existing signs as well as the erection of additional traffic control signs.”
The trial court by instruction No. 2 informed the jury of 68-419, supra, by quoting the pertinent portion thereof, and advised the jury that the statute does not impose liability for general negligence, but imposes a liability created by statute for a defect in a state highway. The trial court then instructed the jury:
“No. 2-A
“You are instructed that the duty of the State Highway Commission in regard to traffic control devices is established by law. The law, K. S. A. 8-511 states ‘Traffic-control devices on state highways, (a) The state highway commission shall place and maintain such traffic-control devices, conforming to its manual and specifications, upon all state highways as it shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn, or guide traffic.’
“No. 2-B
“You are instructed that the manual on ‘Uniform Traffic Control Devices for Street and Highways’ adopted by the State Highway Commission of Kansas on March 28, 1962, provides as follows:
“Rule 1A-22 Height
“Signs erected at the side of the road in rural districts shall be mounted at a height of at least 5 feet above the level of the roadway edge, measured to the bottom of the sign. . . . and in any case where parking is likely to occur or where there are other obstructions to view, the height shall be at least 7 feet.
“Rule IB-9 Location of Stop Sign and Yield Sign
“In the event the visibility of a Stop sign ... at any location is restricted, the sign shall be located as specified, and a Stop Ahead sign . . . shall be erected in advance of the Stop or Yield sign.
“Rule 1A-28 Maintenance
“Special care should be taken to see that weeds, shrubbery construction materials, and snow are not allowed to obscure the face of any sign.
“Rule 1C-14 Stop Ahead Sign
“The Stop Ahead sign shall be used in advance of a Stop sign . . . that is not visible for a sufficient distance to permit the driver to bring his vehicle to a stop at the Stop sign. Obstruction of view due to ... foliage, . . . should be considered in determining the need for the erection of this sign.
“Rule 1C-10 Cross Road Sign
“The Cross Road sign, showing a vertical cross symbol, shall be erected on a through highway to indicate the presence of a cross road. (The manual indicates that this sign should not be used indiscriminately, and that criteria warranting its use are poor sight distance, obscured entrances, and cross roads carrying a large volume of traffic). Too frequent use of the Cross Road sign should be avoided.”
Of material significance to the foregoing instructions is G. S. 1949 (now K. S. A.) 8-510 which provides:
“The state highway commission shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within the state. Such uniform system shall correlate with, and, so far as possible, conform to the system then current as approved by the American association of state highway officials.”
By instruction No. 10 the trial court instructed the jury:
“You are instructed that stop signs and other traffic control devices become an important part of the physical appurtenances of the highways and are used for highway purposes and may be a defect in the highway as contemplated by K. S. A. 68-419.
“Stop signs and other traffic control devices are installed for the purpose of making the highways reasonably safe for the traveling public.
“It is the legal duty of the State Highway Commission of Kansas to so construct their traffic control devices and maintain the same in such a way as to be reasonably effective to serve the purpose for which they were intended, giving due consideration to all of the facts, circumstances and conditions that might reasonably be expected to affect safety of the traveling public.”
It has been repeatedly held that the state’s liability for a defect in a state highway, if any, is by reason of 68-419, supra; that the state has no liability under the statute unless the alleged defect in the state highway comes within the purview of its terms, and that such determination is a question of law. Any person seeking to recover against the state must bring himself clearly within the terms of the statute, and the court has no right to enlarge the scope of the statute nor amend it by judicial interpretation. The liability is predicated on the existence of a defect in the state highway and is not based upon the law of negligence. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066, and the numerous authori ties cited therein; and Schroder v. Kansas State Highway Commission, 199 Kan. 175, 428 P. 2d 814.)
In Cronin the court said:
“. . . However, it may be said that throughout all these cases we have steadfastly adhered to the proposition there is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition constitutes a defect and that in the final analysis it is the fixed policy of this court to handle each case separately and to either include it in or exclude it from the operation of the statute. . . .” (p. 45.)
In the case of Dunlap v. Lawless, 192 Kan. 686, 391 P. 2d 70, this court said:
“. . . Although this court has on occasion remarked by way of observation that a dangerous condition in a highway is a defect in the highway, it did not state that any dangerous condition was per se a defect under the statute —one creating liability. In addition to being dangerous, a condition must also be one the legislature is deemed to have intended to fall within the statute creating liability. (See, Sheen v. State Highway Commission, supra [173 Kan. 491, 249 P. 2d 934].)” (p. 690.)
A case in which the facts are closely analogous to those in the instant case is Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087. There a collision occurred between an automobile going north on a secondary road and one traveling on state Highway No. 4. The stop sign on the secondary road was hidden by weeds, and there was no other notice posted to give warning that the driver was entering an intersection of a state highway. This, it was alleged, created a defect in the state highway but the court held otherwise, stating:
“. . . In this case the statute clearly provides for the erection of signs at certain intersections so that persons traveling on the highway may be protected from danger due to other travelers entering these intersections. The weeds which it is alleged hid the sign and thus constituted the alleged defect in the state highway were not on the state highway at all, but were on the county road. There is no allegation in the petition that there was any condition in the highway itself which rendered it unsafe for travelers thereon. Automobiles could have traveled on the state highway in this case every minute of the time in question and would not have been in the slightest danger on account of the alleged defect. Cars could have crossed the state highway on the secondary road at any time and would not have been in any danger from any condition in the highway itself. While the question of what condition in a highway constitutes a defect may in some cases be one for the jury, this court can say whether a particular condition is such as was intended by the legislature to render the highway commission hable. (See Bohm v. Racette, 118 Kan. 670, 236 Pac. 811, and Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102.)” (pp. 114, 115.)
The foregoing decision of the Phillips case was on a demurrer to the petition. When the case went back to the trial court the petition was amended to allege that the stop sign was placed on Highway K4 and two and one-half feet within the boundary lines of said highway under and by virtue of G. S. 1935, 8-122; and that it was hidden by a dense growth of weeds on state Highway K4. Upon return of the case to this court in Phillips v. State Highway Comm., 148 Kan. 702, 84 P. 2d 927, the court again held the facts did not disclose that a defect existed within the purview of 68-419, supra. It said the state highway had no defect which imperiled the traffic passing over it, and that it was the collision of the automobiles on a perfectly good highway that caused the plaintiff’s injuries. The court, however, discussed G. S. 1935, 8-122, which reads in part:
“. . . That the state highway commission shall erect at entrances of intersecting state and federal highways signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway,
In the opinion the court said the foregoing statute required the erection of such warning signs at the intersecting entrances of state and federal highways, not at the intersecting entrances of all public roads, however desirable such a stautory mandate would be. It noted the intersection at which the accident occurred was that of a state highway and a secondary road.- The court then said:
“. . . We have no right to enlarge the scope of the statute nor to amend it by judicial interpretation. . . .
“And since it is clear that the state highway commission committed no breach of statutory duty in respect to the maintenance of the stop sign at the entrance to highway K4, where plaintiff was injured, it becomes immaterial whether our decision in this case on the first appeal (146 Kan. 112, 68 P. 2d 1087) be regarded as res judicata or not; and the judgment of the district court in this second appeal cannot be disturbed. . . .” (pp. 705, 706.)
Thus, in the second appearance of the Phillips case before this court, it was inferentially held that had the State Highway Commission been under a duty to erect a stop sign at the intersection in question, the alleged defect would have been within the purview of G. S. 1935 (now K. S. A.) 68-419.
Since the Phillips decision, G. S. 1935, 8-122 has been repealed. (L. 1937, ch. 283, § 135.) The State Highway Commission has clearly admitted that the Uniform Traffic Control Manual adopted in 1962 prescribes standards for traffic control devices; that U. S. Highway No. 154 is a through highway, and when stop signs are placed they must conform to the standards set out in the Uniform Traffic Control Manual; that it had an absolute duty to conform to the rules set out in this Manual; and specifically that it had a duty to place and maintain traffic control devices at the intersection in question in the instant case.
This court has long departed from the proposition that a defect in a state highway, to be within the purview of 68-419, supra, must be on the traveled portion of the roadway.
As long ago as 1923 this court in Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051, held that a ditch covered with weeds on the side of the traveled part of the road fell within the purview of the statute. There the road was only thirteen and one-half feet wide, and a motorist turned off the traveled portion of the road to avoid a collision with an oncoming vehicle, thereby running into the ditch, the depth of which he could not determine because it was covered with weeds. The court said this presented a question of fact for the jury as to whether the ditch was a defect, and that it would be a judicial invasion of the jury’s function to hold arbitrarily that there was no defect in the road.
In Snyder v. Pottawatomie County Commrs., 120 Kan. 659, 245 Pac. 162, the county commissioners negligently failed to install a guard rail or warning sign at a curve in a highway rising on a graded approach to a railroad crossing, and the court held this to be a defect in the highway. In the opinion the court said:
“. . . While plaintiff and the driver could have seen the turn in the road before reaching it (finding 11), there was nothing to warn them that unless they turned sharply they would be trapped by the embankment; and the defect in the highway lay, not in the condition of the traveled portion of the way, which was wide enough (findings 13 and 17), but in the absence of a guard rail or warning sign.” (p. 661.)
The court has adhered strictly to statutory liability under G. S. 1949, 68-301 (Rockhold v. Board of County Commissioners, 181 Kan. 1019, 317 P. 2d 490) just as it has under 68-419, supra. It has been said the statutes are similar where recovery is sought from the state under 68-419, supra, and where recovery is sought from a county or township under G. S. 1955 Supp. (now K. S. A.) 68-301. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066.)
Grantham v. City of Topeka, 196 Kan. 393, 411 P. 2d 634, is a recent decision by this court squarely holding that it is not necessary that a defective condition be in the traveled portion of the roadway. There it was held if the condition is such that it affects the street to the extent that it is not reasonably safe for its intended use, a defective street condition exists, citing Burns v. Emporia, 63 Kan. 285, 287, 65 Pac. 260; and Turner v. City of Wichita, 139 Kan. 775, 33 P. 2d 335.
While liability in the Grantham case was predicated upon negligent failure of the city of Topeka to keep its streets reasonably safe for public use, this aspect of the case does not detract from the fact that such negligence caused a defect to exist “in the public street.” In the Grantham case this court said:
“The city argues the sign was no physical part oí the street and was not used for street purposes. We do not agree. The record shows that the stop and one-way sign was installed by the city in the parking near the curbline of the traveled portion of the street. A street, like a public highway, is the entire way between the property lines of the abutting owners. . . . Where, as here, the city has exercised the discretion vested in it to designate through streets and provide for stop signs at each intersection facing the subordinate street, except at those intersections where the traffic on the through street is controlled by traffic signals or stop signs as provided in Section 26-801 of the city ordinance, the sign becomes an important part of the physical appurtenance of the street and is used for street purposes. . . .
“The purpose of designating certain streets as through streets is to expedite traffic insofar as speed is consistent with safety, and to protect travelers on intersecting and through streets from the dangers of collision. Both Tyler and Huntoon Streets had been accorded official priority by ordinances of the city creating them one-way through streets and providing for stop signs at each intersection, except that Tyler Street traffic was required to stop before entering or crossing Huntoon. The stop and one-way sign was installed for the purpose of making the street safe for travel, but it was not in its normal or usual position in the street at the time of the plaintiff’s accident; it had been knocked down or bent over and served no purpose to regulate traffic or warn and command persons to stop before proceeding into the Huntoon intersection. That the sign toas defective is evident, and being a physical part of the street, it must be treated similar to other defective conditions in the street. . . .” (pp. 401, 402.) (Emphasis added.)
It is apparent the trial court relied on the Grantham decision in framing its instructions and in the trial of this case.
The method recognized for expanding the scope of defects in a state highway under 68-419, supra, or in a township or county highway under 68-301, supra, is disclosed in Story v. Brown County, 116 Kan. 300, 226 Pac. 772. There the Board of County Commissioners had made a deep excavation in a county highway and failed to erect proper warning signs as required by the statute. (G. S. 1935, 68-121.) The plaintiff was injured in attempting to avoid the excavation, which he was unable to do on account of the absence of warning signs and an adequate barrier. The defendant in that case argued at the time the defective highway statute was passed there was no law requiring the maintenance of lights or signs on account of road repairs, and that the passage of such an act did not extend the scope of the county’s liability. In answer to that argument the court said:
“. . . Where the subsequent statute imposes upon the county a new duty with the purpose of making highways safer, we regard the omission of that duty as creating a defect in the highway within the meaning of the act establishing the county s liability. . . .” (p. 302.) (Emphasis added.)
The Story case was cited and the foregoing quotation set out in Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087.
In the instant case the State Highway Commission, pursuant to K. S. A. 8-510 adopted a Manual on Uniform Traffic Control Devices for Streets and Highways in 1962, and under K. S. A. 8-511 the duty is imposed upon the State Highway Commission to maintain traffic control devices upon all state highways in conformity to its Manual and specifications which have the force and effect of law. The Manual on Uniform Traffic Control Devices was prepared by the National Joint Committee on Uniform Traffic Control Devices comprised of various associations and committees designed to bring about the uniformity in the control of traffic.
The State Highway Commission of Wyoming adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (June, 1961, edition), which was before the Supreme Court of Wyoming in Fanning v. City of Laramie, 402 P. 2d 460 (Wyo. 1965). There a stop sign on a city street was concealed by limbs and foliage of trees located between the crosswalk and traveled portion of the cross street, thereby creating a dangerous condition. An accident occurred as a result of such condition causing the death of a person, for which an action was filed. The city had designated the street in question as a through street, thereby becoming subject to the mandatory requirement that it erect signs conforming to statutory and Wyoming State Highway Commission directives. In Wyoming a city is liable under an exception to the governmental immunity doctrine for damage or injury suffered as a result of a street defect.
The Wyoming court said the adoption of the Manual and specifications by the State Highway Commission, pursuant to statutes of the state authorizing such action, made the regulations contained in the adopted Manual the law of the state just as much as any other regulations authorized by the legislature. In the opinion the court said:
“The City having elected to establish the through street and having erected the required stop sign was obligated to maintain its visibility and to exercise special care that shrubbery, i. e., trees, was not allowed to obscure the sign and prevent it from conveying its message effectively. This principle of municipal liability was accepted in Phinney v. City of Seattle, 34 Wash. 2d 330, 208 P. 2d 879, 881, the court saying:
“ “We are of the opinion that the legislature intended ... to authorize counties and cities ... to determine and designate which roads and streets should be arterial highways, and whenever such action was taken to require such counties and cities ... to erect and maintain stop signs; also that the legislature intended that if the counties or cities failed to comply with its mandate they would be liable in damages to users of the highways injured by such default. . . .’” (p.466.)
The Wyoming Supreme Court noted the critical question in the case lies in whether an imperative duty was placed upon the city to erect and adequately maintain a sufficient stop sign at the accident intersection. The court found that such imperative municipal duty had been legislatively ordained and the city’s usual governmental immunity had been impliedly waived by that arm of the state government which had the legal right to do so.
It seems obvious that by designating a high speed through highway as part of the state highway system, the state has created a new traffic hazard. In the absence of being a through highway, drivers of vehicles on both of the two intersecting roads would be governed by the ordinary rules of the road and are charged with the same exercise of care. But drivers of vehicles upon secondary highways which intersect through state highways are governed by different rules. A driver approaching a through highway, indicated by a stop sign, is required to stop his vehicle before entering the intersection. The driver of a vehicle on a through highway has a right to assume the way is clear for his passage through intersections, whereas the driver of the vehicle on the non-through intersecting highway is subject to a new and added peril when entering the intersection, unless given warning of the superior right of the driver on the through highway in the use of the intersection.
The discretion given the State Highway Commission in K. S. A. 8-511 by the language “upon all state highways as it shall deem necessary” (emphasis added) is a discretion to designate the state highways it deems necessary for public use as through highways, and not a discretion to mark or control only such intersections on a through highway as it chooses. Once a state highway has been established and designated as a through highway by posting, the absolute duty to comply with the Manual is imposed upon the State Highway Commission by the statute to control vehicular traffic using or entering upon such highway.
With the adoption of the Manual on Uniform Traffic Control Devices for Streets and Highways by the State Highway Commission pursuant to legislative authorization, these regulations have the force and effect of law. The State Highway Commission concedes that it has an absolute duty to conform to the rules set out in this Manual. If the obligation thereby imposed upon the State Highway Commission is to have any significance, it requires that the installation and maintenance of a stop sign to control traffic entering a through state highway from a county road he sufficient and render the stop sign efficient to convey the message intended to control such traffic. (Story v. Brown County, supra; Snyder v. Pottawatomie County Commrs., supra; and Phillips v. State Highway Comm., supra [148 Kan. 702].)
The admissions made by the State Highway Commission at the pretrial conference concerning its obligation to comply with the rules set out in the Manual and place a stop sign at the intersection in question are consistent with the obligation imposed upon it by law.
The pretrial order specified that an issue of fact in the case was whether the stop sign in question was erected at the height required by the Manual on Uniform Traffic Control Devices.
The jury resolved this question adverse to the State Highway Commission.
Analyzing the point in more detail, the trial court by instruction No. 2-B correctly set forth the applicable portions of the Uniform Traffic Control Manual. Rule No. 1A-22 pertaining to the height of signs requires that signs erected at the side of the road in rural districts shall be mounted at a height of at least five feet above the level of the roadway measured to the bottom of the sign, and in case where parking is likely to occur or where there are other obstructions to view, the height shall be at least seven feet.
There was testimony, if believed, that the stop sign in question was possibly two to six inches less than five feet high to the bottom of the sign. Had the circumstances at this intersection called for a five-foot sign this would have been substantial compliance. The controversy, however, was not over six inches, but over the difference between five feet and a minimum of at least seven feet. On all the evidence presented the stop sign in question was obstructed by the cluster of bush-like trees or shrubs to the view of motorists using the Coronado Bridge Road. On the evidence presented the jury could well have found that the stop sign should have been placed at least seven feet high measured to the bottom of the sign, and by reason thereof the placement of the stop sign at five feet constituted a defect in the state highway because it did not convey the message intended.
There is evidence in the record that within a very few days after the accident in question, three trees were cut down which had been strung along the break of the shoulder on the east side of the Coronado Bridge Road a short distance south of the stop sign. The biggest one measured seven or eight feet tall. There was also evidence in the record admitted without objection that the stop sign in question was changed from a yellow to a red sign, and that the stop sign was made higher.
While the state has given its consent to be sued for defects in a state highway causing injuries, it may be conceded as the State Highway Commission contends, that the state has not given consent by statute to be sued for defects existing on county or township roads. (Summerville v. State Highway Comm., 139 Kan. 530, 32 P. 2d 224.) The stop sign in question, however, was within the right-of-way of U. S. Highway No. 154 at the intersection in question.
A question of law to be determined by the trial court under the pretrial order was whether the condition surrounding the stop sign was a highway defect as contemplated by 68-419, supra. Basically the trial court by its instructions determined that the alleged defect within the purview of the statute centered on the condition of the stop sign within the state highway right-of-way. This is not to say that the conditions off the highway right-of-way surrounding the stop sign could not be taken into consideration. For it is only by looking at the surrounding circumstances, and in particular the bushy tree obstructing the stop sign, that makes the stop sign defective or inefficient to convey the message — to stop traffic at the intersection before entering the state highway. In this respect the trial court properly instructed the jury. The jury was informed of the statute and the requirements of the Manual by instructions No. 2-A and No. 2-B, and then given a basic instruction on the duty of the state highway commission regarding stop signs and other traffic control devices by instruction No. 10.
The court holds that a stop sign on the side of a state highway within the highway right-of-way, which is defectively installed or obstructed from view so that it is inefficient to convey the message intended to control traffic entering the state highway from a county road, is a defect in the state highway within the purview of K. S. A. 68-419; and upon all the evidence presented by the record a jury question was presented as to whether the stopi sign in question constituted a defect in the highway, which was a proximate cause of the injury and damage to the members of the Brown family.
The appellant contends the record does not show that the State Highway Commission had notice of the defect in the state highway five days prior to the time the damage was sustained as required by K. S. A. 68-419.
The evidence disclosed Herman Wolfe was a highway maintenance foreman employed by the State Highway Commission for eighteen years, and at the time of the accident was working out of Dodge City. He testified that prior to June, 1963, he drove north on the Coronado Bridge Road from his home in Wilroads Gardens to its intersection with U. S. Highway No. 154 approximately twice a week for three years.
It has been held in actions such as this that notice of the defect need not be formal, but that there must be actual knowledge of the defect for the requisite period of time. (Arnold v. Coffey County Commrs., 131 Kan. 343, 291 Pac. 762; and Neiswender v. Shawnee County Commrs., 153 Kan. 634, 113 P. 2d 115. Actual knowledge of the defect, however, like any other fact, may be established by circumstantial evidence. (Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822.)
When the testimony of the numerous witnesses in this case is considered (to the effect that the stop sign in question was completely obstructed by the bushy tree) the foregoing testimony of Herman Wolfe, who was admittedly a foreman for the State High way Commission in charge of maintenance of U. S. Highway No. 154 at the point in question, was sufficient for the jury to find the State Highway Commission had actual knowledge of the defect for the required period of five days. The jury was properly instructed and its general verdict indicates the jury found the notice to be sufficient.
Counsel for the appellant contend the verdict was rendered under the influence of passion and prejudice because improper prejudicial conduct of plaintiff’s counsel prevented a fair trial.
The portions of the record indicated by the appellant to substantiate these charges have been carefully reviewed, and after considering them and the record as a whole, we are unable to say the conduct of counsel for the plaintiff prevented a faff trial.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
The defendant was convicted of the violation of the provisions of K. S. A. 21-590 which prohibits the use of a credit card, without the consent of the person to whom it was issued, with intent to defraud.
In his statement of points the defendant raised numerous alleged trial errors but they were all abandoned on the presentation to this court except the claim that the evidence was insufficient to support the verdict.
The evidence as disclosed by the record supports the following facts:
Shortly before Christmas, 1966, Mr. James Yeoman found a Texaco credit card belonging to Mrs. Harold R. Richards in front of the Lassen Motor Hotel, Wichita, Kansas. The same numbered credit card had been issued in duplicate to Mr. and Mrs. Harold R. Richards.
On January 5, 1967, the defendant, Lawrence G. Hollé, was working for the Lucky Sanders’ Parking Lot in Wichita, Kansas. He introduced Yeoman to the parking lot manager and Yeoman was also put to work there. The defendant and Yeoman were living at the same motel.
On January 10, 1967, the defendant, accompanied by Yeoman, drove to the Benjamin Texaco Service Station in the defendant’s 1956 Dodge automobile. The automobile carried a 1966 license plate which had been taken from a disabled car in the latter part of 1966, or early part of 1967, while parked at the Kansas Paper Stock Company where Yeoman had been working.
Some service was performed on defendant’s automobile which Yeoman satisfied by use of the aforementioned credit card and the signing of Harold R. Richard’s name. At the same time an order was placed for three 670 x 15 white sidewall tires, four 600 x 16 six ply truck tires, two conventional and two mud and snow blackwall, plus tubes, in the amount of $303.12. They were to be picked up the next day.
The defendant was with Yeoman when the purchases were made. • He knew Yeoman had the credit card and accepted the benefits. Neither the defendant nor Yeoman knew either Mr. or Mrs. Richards and the Richards had not consented to the use of the credit card. The next evening Yeoman returned to pick up the tires and ordered further service. The attendant became suspicious and called the police. Yeoman admitted he had found the credit card and did not know the owner. He was placed under arrest. A short time later the defendant arrived at the Texaco Service Station and found a policeman there. The officer questioned the defendant about the 1966 license tag and took it off the automobile. The defendant then went to the trunk and got out a 1967 license tag. He was allowed to leave but was later informed against for violation of K. S. A. 21-590 and conviction by a jury followed.
We reach the single issue now raised by the appellant — was the evidence sufficient to sustain the conviction?
In the recent case of State v. Shaw, 195 Kan. 677, 408 P. 2d 650, this court reviewed our earlier decisions and stated some very definite guide lines governing the responsibility of this court when the sufficiency of evidence is before this court for review. We reiterate—
An appellate court will not weigh conflicting evidence. It is the function of the trier of facts, not that of a court of appellate review, to weigh evidence and pass upon the credibility of witnesses. A verdict of guilty, when approved by the trial court, must stand if supported by substantial competent evidence. Where the sufficiency of evidence is being reviewed, the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt. The general rule is — before a verdict approved by the trial court may be set aside on appeal for insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence. (See, also, State v. Scoggins, 199 Kan. 108, 427 P. 2d 603.)
Without reviewing the evidence in more detail it will suffice to state that we have carefully reviewed the record in the light of the rules set forth above and find there is substantial competent evidence to support the verdict.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Charles E. Satterfield, has appealed from his conviction of uttering and passing a forged instrument (K. S. A. 21-609) on the ground there was insufficient evidence to sustain the verdict. Specifically, the contention is advanced that there was no substantial evidence from which the jury could infer that the defendant had knowledge the instrument was forged.
The state’s case disclosed that on May 29, 1966, the defendant went to Walls I. G. A. store in Wichita and cashed a U. S. Treasury check made payable to Dorman and Bobby Watley of 1931 North Piatt, Wichita, Kansas, in the sum of $135.96. The check was already endorsed when defendant presented it to a checker at the store. Regiscope pictures of the defendant and of the check were taken at the time for identification purposes. The check was a 1965 income tax refund destined for Dorman and Bobby Watley who formerly lived at 1931 North Piatt. The Watleys had never received the check. They testified the endorsements on the instrument were not theirs, nor had they authorized anyone to endorse the check for them. Further, they were not acquainted with the defendant.
Defendant made an oral statement to Wichita detectives after his arrest in which he admitted he cashed the check but denied he placed the endorsements thereon or had knowledge they were forged. According to defendant, he purchased the check for $50 from a friend named “Larry” who needed money. The endorsements were on the check when he received it from “Larry.” He had known “Larry” for about two weeks, having met him through some friends whose names he could not remember. “Larry” had been staying at the North Piatt address,and he told defendant the Watleys were his relatives. At no time was defendant able to give the officers “Larry’s” last name. Later the officers checked the residence at 1931 North Piatt and were unable to find anyone there by the name of “Larry.” The Watleys also said they were not acquainted with anyone by that name at that address. Defendant told the officers he usually cashed his checks at Johnny Jabara’s Market, but two female companions, “Mrs. Rose” and “Betty,” accompanied him to Walls I. G. A. when he cashed the check because “these ladies went out there.” From this the officers opined the women probably “traded” there. Defendant couldn’t remember Betty’s last name, nor could he recall where Mrs. Rose lived.
The only defense witness was Rose Bryant, who testified she was defendant’s first cousin. She and Mrs. Betty Bums accompanied defendant to Walls I. G. A. and waited in the car while he cashed the check. According to Rose, defendant was a friend of Betty Bums and was well acquainted with Betty’s address as well as her own.
One of the essential elements for conviction under K. S. A. 21-609 is that the accused knew the instrument was a forgery at the time he uttered or passed it, and such knowledge may be proved by circumstantial evidence. (State v. Murphy, 145 Kan. 242, 65 P. 2d 342.)
Here, there was direct evidence that the endorsements of Dorman and Bobby Watley were made without authority and, in fact, were forgeries. The defendant, however, was not charged with forging the instrument — only uttering or passing it, knowing it was forged. Defendant’s possession of the forged instrument is undisputed. His argument that possession constituted the only evidence from which the jury could infer guilty knowledge does not take into account the evidence relating to the circumstances surrounding the manner in which he acquired the check.
In State v. Murphy, supra, the defendant was charged with one count of forgery and one count of uttering, but was convicted only on the uttering count. The conviction was challenged on the basis the evidence did not show the check was forged nor that defendant knew it to be forged. In upholding the conviction, this court stated:
“In the verdict of guilty for uttering inheres the belief of the jury that the check was a forgery, and that appellant knew it to be a forgery. The conviction is based on direct and circumstantial evidence. . . . [C]onceding the jury did not believe appellant signed this check, and conceding further that the question of whether he knew the check was a forgery depended entirely on circumstantial evidence, he is not entitled to a reversal at the hands of this court. The testimony fairly tended to show the guilt of appellant. Now, was there a basis in the evidence for a reasonable inference of guilt? If so, we must affirm the judgment. (State v. Hunter, 50 Kan. 302, 32 Pac. 37; State v. Brizendine, supra [114 Kan. 699, 220 Pac. 174].) In the Brizendine case it was held:
“‘When considering on appeal the sufficiency of circumstantial evidence to sustain conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the jury and the trial court, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt.’ (Syl. f 1.)
“. . . The jury by its verdict, among other things, found he was in possession of a forged check. Such possession, without a reasonable explanation of how he acquired it, warrranted an inference he himself had forged it or was a guilty accessory to the forgery. The verdict indicates appellant’s explanation of how he acquired the check did not appear reasonable to the mind or conscience of the jury. Under these circumstances the conviction must stand. . . .” (pp. 246-247.)
(Also, see, State v. Maxwell, 151 Kan. 951, 102 P. 2d 109, 128 A. L. R. 1315; 36 Am. Jur. 2d, Forgery § 44.)
This court does not weigh evidence and is not concerned with inferences therefrom opposed to the verdict. Our consideration is confined to whether there was a basis for a reasonable inference of guilt. Before a verdict of guilty which has been approved by the trial court may be set aside because of insufficiency of evidence it must clearly be made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the lower court. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Scoggins, 199 Kan. 108, 427 P. 2d 603; State v. Crosby, 182 Kan. 677, 324 P. 2d 197; State v. Hancock, 127 Kan. 510, 274 Pac. 209.)
The jury, as the exclusive judge of all material questions of fact, was entitled to draw reasonable inferences from the evidence. (State v. Childs, 198 Kan. 4, 422 P. 2d 898; State v. Greenwood, 197 Kan. 676, 421 P. 2d 24.) Without repeating the evidence already narrrated touching upon defendant’s explanation to the police officers of how he acquired the check, we are of the opinion the jury was justified in inferring defendant had knowledge the check was forged. What has been said also disposes of defendant’s contention the trial court erred in overruling his motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
Defendant appeals from a conviction of burglary in the second degree and larceny in connection therewith, as denounced by K. S. A. 21-520 and 524.
During the night of November 14, 1966, a school house near Effingham was burglarized, and a movie projector and money were stolen. Three days later the projector was recovered in an apartment in Kansas City, Missouri, occupied by defendant, and he was apprehended at that time. He subsequently signed a written statement in which he admitted that on the night in question he drove his brother Dean and another person to a point near the school house. Dean and the other person got out of the car. Defendant drove off, and returned to the scene in about an hour. Dean and the other person appeared out of the darkness. Dean was carrying the projector — and gave defendant a share of the money.
Present counsel also represented defendant at the preliminary examination and trial. In this appeal seven contentions are made.
The first concerns the failure of the state to endorse the names of witnesses on the information at the time it was filed, as required by K. S. A. 62-802. Apparently counsel for defendant had not noticed the matter until after the third witness had testified. The defect was called to the court’s attention, whereupon the state was allowed to endorse the names over defendant’s objection. Defendant’s motion for a continuance also was denied and the trial proceeded.
As shown by the case annotations following the statute, the question has been dealt with many times — on a case-by-case basis. Generally speaking — the rule is that the late endorsement of the names of witnesses or of additional witnesses — rests within the sound discretion of the trial court — the test being whether a defendant’s rights are prejudicially affected by the allowance of such endorsement (State v. Hendrix, 188 Kan. 558, 565, 363 P. 2d 522). Here, however, and despite the flagrant violation of the statute— no prejudice has been shown. Several of the witnesses had testified at the preliminary examination — and defendant and his counsel were well aware of the state’s evidence. In fact, upon oral argument counsel candidly admitted that he was not taken by surprise. Under the circumstances clearly shown — we cannot say that the trial court abused its discretion in permitting the late endorsement and in denying a continuance.
It next is contended the court erred in permitting a woman to testify concerning her relationship with defendant while they were in California. This witness was in the apartment in Kansas City with defendant when he was apprehended and the projector recovered. Defendant contends her testimony was only for the purpose of showing him to be an immoral person. The state contends it was for the purpose of showing the unbroken chain of events and circumstances and the relationship between defendant and his brother Dean — all of which led up to the commission of the offenses here in question. On this point the record is quite hazy and incomplete, and her testimony appears to be more or less immaterial one way or the other. In any event — and especially in view of the other evidence — defendant has not established prejudicial error.
It is contended that a signed statement given by defendant to an agent of the Kansas Bureau of Investigation was erroneously admitted in evidence. The details surrounding this matter need not be recited, but the record clearly establishes that defendant was given the “Miranda” warning and that he was fully advised of all his constitutional rights and that the statement was voluntarily given after being so advised.
It next is contended the court erred in giving an instruction on aiding and abetting in the commission of an offense. A short answer to this is that under the evidence such an instruction was entirely proper.
Defendant complains of an instruction which contained a statement to the effect the jury could not acquit him unless all of the jurors entertained a reasonable doubt as to his guilt. While we disapprove of the form of that portion of the instruction — the entire instruction — read as a whole — correctly advised the jury as to reasonable doubt and the only circumstances under which defendant could be found guilty. Read in connection with the rest of the instruction — the critized portion was merely another way of saying that a verdict of either guilty or acquittal must be unanimous.
Defendant also complains of the instruction concerning the presumption arising from the unexplained possession of recently stolen property. Here the movie projector was found in the apartment occupied by defendant three days after it was stolen — which period of time defendant contends was not recent. We do not agree. The word “recent” must be given a relative connotation, and under the facts of record the instruction — when given with the other instructions — was proper. See State v. Grey, 154 Kan. 442, 119 P. 2d 468; State v. Sims, 192 Kan. 587, 389 P. 2d 812; State v. Wood, 197 Kan. 241, 249, 416 P. 2d 729; State v. Oswald, 197 Kan. 251, 255, 417 P. 2d 261. Complaint also is made of some rather “awkward” language used in the instruction. We believe it fairly is to be interpreted as meaning that such possession — in order to raise the presumption of guilt — must be without any reasonable explanation by defendant.
And finally, defendant contends the court erred in refusing to submit a form of verdict finding him guilty of larceny alone, because the evidence showed that it was his brother who had entered the school house — and not he.
Three forms of verdict were submitted — (1) not guilty, (2) guilty of burglary in the second degree, and (3) guilty of burglary in the second degree and commission of larceny. We think this was proper, for under the evidence if defendant was guilty of larceny he also was guilty of burglary as a principal in the second degree (K. S. A. 21-105). This case is readily distinguishable from State v. Baker, 197 Kan. 660, 421 P. 2d 16 in which the offense of burglary was defectively charged and yet the conviction of larceny was permitted to stand.
Examination of the record and arguments by defendant fails to establish that he did not receive the fair trial to which he was entitled. No error being shown — the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action brought by the plaintiff to recover for personal injuries and damages to his motorcycle resulting from an intersection collision between the plaintiff’s cycle and the defendant’s auto. The case was tried to a jury and resulted in a verdict for the defendant upon which judgment was entered by the trial court. Thereafter the trial court granted the plaintiff’s motion for a new trial, and the defendant has duly perfected an appeal to this court.
The underlying question is whether this court has jurisdiction of the appeal.
Briefly stated, the facts are that Norman Dean Herbel (plaintiffappellee) was riding a motorcycle in a northerly direction on U. S. Highway No. 81 south of Newton, Kansas, approaching the intersection of Southeast 14th Street. David E. Endres (defendant-appellant) was approaching the intersection in question from the west and had stopped at the stop sign, after looking to the south, but did not see the plainiff. He then proceeded to cross the intersection and struck the plaintiff who was riding the motorcycle.
The plaintiff testified that as he approached the intersection of Southeast 14th Street he saw the defendant headed in an easterly direction stopped at the stop sign on the west. He then felt it was no longer necessary to observe the defendant and proceeded into the intersection.
The case was tried to a jury on the usual issues of negligence and contributory negligence. From a review of the record presented on appeal it may be said the defendant was guilty of negligence in proceeding into the intersection as he did, but the question of the plaintiff’s contributory negligence and whether it was a proximate cause of the collision was properly a matter to be determined by the jury.
At the close of all the evidence the plaintiff’s motion for a directed verdict as to liability was overruled, and on presenting the case to the jury the court, among the twenty-two instructions submitted, correctly instructed the jury on the issue of the plaintiff’s contributory negligence.
No special questions were submitted to the jury, and it promptly returned a general verdict for the defendant. The court thereupon approved the verdict and rendered judgment in favor of the defendant.
Within the time allotted by K. S. A. 60-259 (b) the plaintiff filed a motion for a new trial on three grounds which were stated as follows:
“(1) The verdict is contrary to the law and the evidence, in that there was no evidence that plaintiff was guilty of any negligence. That defendant’s own testimony absolved plaintiff of any negligence, in that the evidence of defendant was that had he looked, which he was obligated to do, after he left the stop sign he would and could have seen the plaintiff and he, the defendant, could have stopped and avoided the plaintiff — this he failed to do; and that failure was the immediate proximate cause of the injury to the plaintiff.
“(2) The Court erred in refusing plaintiff’s motion to direct a verdict in favor of the plaintiff on the issue of liability at the close of all the evidence, leaving only the question as to damages to the jury.
“(3) The Court erred in giving any instructions as to alleged contributory negligence, for the reasons set forth in paragraphs 1 and 2 above.”
The motion was argued on the 1st day of June, 1967, at which time the court took the matter under advisement until the 5th day of June, 1967, when it announced the decision granting a new trial in open court.
In making its decision the trial court cited cases decided prior to the enactment of the new code of civil procedure. It relied heavily upon Lord v. Hercules Powder Co., 161 Kan. 268, 167 P. 2d 299; and Bishop v. Huffman, 175 Kan. 270, 262 P. 2d 948, quoting portions of these opinions. It relied upon these cases for the proposition that unless the court can give a verdict its independent approval it has not only the right, but the duty, to set it aside and grant a new trial.
In announcing its decision the trial court said:
“. . . I have made a review of the evidence. I have weighed the testimony on the question of the plaintiff, Mr. Herhel’s contributory negligence, and I have considered the discretionary powers vested in the trial court and I have come up with the following result, and again this is case law that if a trial court is dissatisfied with the verdict, it not only has the authority but it is its duty to set such verdict aside. In the event this matter should be appealed to the Supreme Court, and so the record is clear at this point, the Court is sustaining the motion for a new trial.” (Emphasis added.)
The trial court made further statements concerning its dissatisfaction with the verdict and concluded:
“Again, it is the ruling of the Court that the motion by Norman Dean Herbel for a new trial is hereby granted on the basis the Court is dissatisfied with the verdict.”
Nowhere did the trial court in announcing its decision on the motion for a new trial express an opinion that it erred in failing to direct a verdict for the plaintiff on the issue of liability, or that it erred in submitting the question of the plaintiff’s contributory negligence to the jury and instructing the jury thereon.
We must therefore conclude the trial court did not grant the motion for a new trial upon any of the grounds stated in the plaintiff’s motion for a new trial, but for a reason of its own — that it was dissatisfied with the verdict. But this is not one of the grounds upon which a new trial can be granted under K. S. A. 60-259.
Our decision herein is controlled by Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P. 2d 398. There, as here, the appeal was challenged on the ground that an order grant ing a new trial is not a final order and, hence, is not appealable within the purview of K. S. A. 60-2102. In the opinion the court said:
“We agree that normally an order granting a new trial does not possess the finality required of an appealable order within the meaning of the statute. . . .
“However, while it is the general rule that an order granting a new trial is interlocutory and, hence, not subject to appeal as a matter of right, federal courts have long recognized an exception to the rule in those instances where the order is challenged on jurisdictional grounds. . . .” (p. 127.)
In the opinion the court adopted the rationale of the federal rule (under a similar appeal statute). It is to the effect that whether or not the trial court had the jurisdiction or power to make an order granting or refusing a new trial, thereby avoiding a former judgment, is always reviewable on an appeal challenging the order, because it goes to the effect and finality of the judgment itself.
In the Landscape Development Company case, as here, a substantial challenge was directed to the jurisdiction of the trial court to grant a new trial. It was said that challenge brings the appeal within the purview of the exception just noted.
The authority of the trial court to direct a new trial, however, must be exercised within the scope of the statute. Under K. S. A. 60-259 (e) the trial court of its own initiative may order a new trial “for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.” In the Landscape Development Company case the court said:
“We think the trial court exceeded the bounds of its statutory authority in both respects: the reason assigned for granting the new trial was not one for which a party might have sought a new trial; and the reason for the court’s action was not spelled out in its order.
“K. S. A. 60-259 (a) sets forth, in plain and unmistakable language, the grounds on which a new trial may be granted to all or any of the parties. There are six of them. We see no need to list them now. It is sufficient, here, to say that the reason assigned by the trial court in this case, ‘that the Court cannot approve the verdict of the jury, period,’ is not one of the six grounds listed in the statute.
“We deem, the grounds delineated by statute to be exclusive and to constitute a limiting factor upon the authority of a trial court to grant a new trial. . . .” (pp. 132, 133.) (Emphasis added.)
There, as here, the trial court granted a new trial because it was dissatisfied with the verdict, which is not one of the six grounds listed in the statute.
In ordering a new trial on its own initiative, the trial court is not only limited to those grounds for which it might have ordered a new trial on motion of a party, but it must also state its reason for its action specifically, not in the general language of the statute.
The appellee in the Landscape Development Company case relied upon cases decided prior to the enactment of the new code of civil procedure, as did the trial court in the instant case. In answering the appellee there this court said:
“However, the cited cases were decided under procedures existing before the enactment of K. S. A. 60-259 (e). The former statutes governing the granting of new trials (G. S. 1949, 60-3001, et seq.) placed no limitation upon the trial court’s power to grant new trials on its own motion, provided its action was taken within the term of court at which judgment was rendered. The present statute is in sharp contrast. It has effected important changes in the former procedure. While a trial court still has a high duty to grant a new trial on its own initiative when it disapproves the verdict, its disapproval must be bottomed on one of the statutory grounds, and its reasons therefor must be set out in its order specifically, not generally. . . .” (p. 134.) (Emphasis added.)
The appellee herein calls our attention to a recital in the journal entry as follows:
“That the Court is not satisfied with the verdict and cannot approve the same, for the reasons stated, and that it is the order of the Court that the plaintiff should be and is hereby granted a new trial herein.”
The appellee argues the granting of a new trial “for the reasons stated” has reference to the grounds set forth in the motion for a new trial. We do not so construe the “Journal Entry On Motion For New Trial.” The reasons stated by the trial court for its decision are set forth in the record which was made when the decision was announced on the 5th day of June, 1967.
We hold the trial court’s order setting aside the verdict and granting a new trial did not comply with the requirements of 60-259 (e), supra, and was ineffective. The trial court had no jurisdiction to grant a new trial simply because it was dissatisfied with the verdict. This is not one of the grounds upon which a motion for a new trial may be granted.
The judgment of the lower court is reversed with directions to set aside its order granting a new trial and to reinstate the verdict of the jury. | [
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The opinion of the court was delivered by
Harman, C.:
This is an adoption proceeding. The principal, if not the only, question involves the necessity of the natural father’s consent to the adoption.
The child in question, Ronald Vincent Nelson, was born in wedlock at Los Angeles, California, June 19, 1964, the son of Doris Ann Nelson and James Paul Nelson. At some time thereafter the mother came to Kansas with the child. On November 30, 1964, the appellees, Doris June Winters and David Noble Winters, obtained custody of the child from its mother who at the same time executed her written consent to its adoption by the Winters. The child has since remained in the custody of the Winters at Arkansas City, Kansas. In January, 1966, in California, the father secured a divorce from the mother. The divorce decree contained no order respecting the child inasmuch as it was not within the court’s jurisdiction.
On May 4, 1966, appellees filed in the probate court of Cowley county, Kansas, their petition to adopt the child, attaching thereto the mother’s written consent to the adoption. In their petition they made the following allegation respecting the father:
“3. That the father, James Paul Nelson, abandoned the mother and child prior to birth of the child and has never assumed parental responsibility towards the child, and his last known address was 4757 Inlay Avenue, Culver City, California.”
Thereafter the father filed his answer in the probate court reciting his version of the marital difficulties he had had with his wife, the mother of Ronald Vincent, and his explanation as to why he had not contributed to their support. He objected to the adoption and requested custody of the child.
September 8,1966, the probate court heard the matter and denied the adoption, finding the father had not failed for two consecutive years to support the child and that his consent was essential to the adoption. The probate court made no order with respect to custody.
Appellees promptly appealed the denial of their adoption petition to the district court of Cowley county, Kansas. Meanwhile, they declined to turn over custody of the child to the father. The father then filed in the district court of Cowley county his petition for a writ of habeas corpus in which he sought the child’s custody. This latter action was heard by a judge pro tem who on November 30, 1966, ruled against the father.
Eventually the appeal in the adoption proceeding was heard in the district court, and on September 22, 1967, it granted the adoption by appellees of Ronald Vincent Nelson. The father has appealed from that order to this court.
K. S. A. 59-2102, provides in pertinent part:
“Before any minor child is adopted, consent must be given to such adoption
“(1) by the living parents of a legitimate child or
“(2) by the mother of an illegitimate child or
“(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two consecutive years or is incapable of giving such consent or
“(4) by the legal guardian of the person of the child if both parents are dead or if they have failed or refused to assume the duties of parents for two consecutive years, or
“(5) by the state department of social welfare, a person, or by the executive head of an agency or association, where the rights of the parents have been legally terminated and custody of the child has been legally vested in such person, department, agency or association with authority to consent to the adoption of said child.
“. . . Consent in all cases shall be in writing, acknowledged before an officer authorized by law to take acknowledgments.”
As the basis for its order of adoption the trial court made the following findings of fact and conclusions of law:
“The Court Further finds that the natural mother of said child, Doris Ann Nelson, did, by written instrument, duly signed, and acknowledged, freely and voluntarily consent to the adoption of said minor child by the petitioners; that James Paul Nelson, natural father of said child, contributed nothing toward the support of the mother of said child or to said child from November, 1963, to September 12, 1966; that the said child is eligible for adoption by the petitioners without the consent of the natural father and that final order and decree of adoption should be entered.”
The fathers parental rights have never been terminated and he has never consented to the adoption; hence the issue is whether, under the facts, his consent to the adoption became unnecessary for failure and refusal to assume the duties of a parent for two consecutive years under K. S. A. 59-2102 ( 3), this being the premise of both the petition for adoption and the trial court’s order granting it.
In In re Sharp, 197 Kan. 502, 419 P. 2d 812, this court construed the statute in question and fixed the focal point of the two year period of default as follows:
“The provisions of K. S. A. 59-2102 (3) are construed, and the term ‘two consecutive years’ as used therein is held to refer to the period next preceding the filing of a petition for adoption.” (Syl. f 3.)
Thus it is requisite that, before his consent becomes unnecessary the father must have failed to assume parental duties two years prior to the filing of the petition for adoption. At the time the petition herein was filed (May 4, 1966), the child lacked about seven weeks of being two years old, having been born June 19, 1964.
Appellant asserts he could not have been delinquent toward the child for two years before the filing of the petition for adoption because the child was not yet two years of age when the petition was filed.
Appellees contend the term child as contemplated in our adoption statutes in determining a father’s parental duty should be construed to include an unborn child. They argue a father owes a duty of support to the child during the period of gestation, commencing at the time of conception, and that here the father abandoned the mother from November, 1963, during her pregnancy, and therefore failed to assume parental responsibility for more than two years prior to the filing of the petition for adoption.
The predicament appears to call for a resolution of the meaning of the term child as contemplated in the adoption statute in connection with paternal duty. Our research and that of resourceful counsel has revealed little, if any, precedent that is helpful.
K. S. A. 77-201 provides:
“In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
“Second. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
In common parlance we think the term child is generally understood to mean a young person between infancy and youth. It is customarily used to refer to an individual in being as distinguished from one not yet born, as a fetus which has no existence of its own apart from the mother to which it is attached. We do not ordinarily use the term child to mean an unborn child. When we intend to indicate the latter we couple the noun with the descriptive adjective. Having due regard to the context in which the term is used in the statute, and the possible difficulty of determination, we think the legislature intended this plain, ordinary meaning — a living child who could be the subject of measurable paternal attention. If anything further was intended the lawmakers could easily have said so. In construing this portion of the statute we have heretofore held that parental duty goes further than mere support (In re Waters, 195 Kan. 614, 408 P. 2d 590; In re Sharp, supra). We hold then that the period of gestation of a child may not be included in computing the two year period of failure or refusal to assume parental duties, so as to make a defaulting fathers consent to adoption unnecessary under K. S. A. 59-2102 ( 3).
Appellees argue the trial court’s order granting the adoption should be upheld because in the habeas corpus action the father was found to be unfit to have the child’s custody. Appealing as this contention may be, it cannot be upheld under our statutory law. Custody and adoption are separate proceedings. In the latter the statutory requirements must be clearly shown to warrant the permanent severance of parental ties. In In re Sharp, supra, we held this:
“Under K. S. A. 59-2102 the consent of natural parents to the adoption of a legitimate child is specifically required unless the case falls within one of the enumerated exceptions. The facts warranting an exception as prescribed by the statute must be clearly proven before the child can be adopted without consent of the natural parent.” (Syl. ¶ 2.)
No matter what the parent may have done, or what his character is, if this is not named in the statute as grounds for dispensing with his consent, then the child cannot be adopted without the parent’s consent. The court must always first determine if statutory grounds for adoption exist. In In re Marsolf, 200 Kan. 128, 434 P. 2d 1010, we stated:
“The consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to jurisdiction on the part of the court to render a valid decree of adoption.” (Syl. ¶ 4.)
Here consent of both parents was required. The father did not give consent and the trial court was without jurisdiction to grant the adoption. Its judgment must be and is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal arises out of a controversy over the application and alleged violations of the Kansas Securities Act. (K. S. A. 17-1252 et seq.) The trial was to the district court which made findings and conclusions, and entered judgment in favor of the defendant-appellees. The plaintiff-appellants timely perfected this appeal.
The principal events giving rise to this lawsuit occurred in February and March 1966, and involved the plaintiffs, Thomas Allen and Frances Allen, his wife, and the defendants, Richard E. Sehauf and Lucille M. Sehauf, his wife. Also involved were Mr. and Mrs. George M. Gillen, of Phoenix, Arizona, who formerly lived in Wichita. The Gillens were not parties to the action, but Mr. Gillen testified as a witness for the plaintiffs. The plaintiff, Thomas Allen, married Frances Loop on March 16, 1966, and all reference to Frances Loop prior to that date is made as Frances Allen.
The transactions in question mainly involved the three families who had been friends for some years — a plan to engage in the corporate building and selling of real estate projects through the use of a new building construction method which the Schaufs had been active in expanding, and the sole right to the use of which Lucille Sehauf had recently acquired. It was known the Gillens would participate financially in part, and if the Allens did not likewise participate in part, the Gillens would assume full financial participation.
Prior to February 1966, Thomas Allen and Richard Sehauf had worked together for several years as tool makers in the same department at Cessna, and Frances Allen had been acquainted with Lucille and Richard Sehauf for four or five years. Thomas Allen had also worked with a Mr. Meehan at Cessna, the inventor of a unique patented construction method known as Mee-Strong. Allen had been acquainted with the process for quite some time and considered it an excellent construction method which could save builders money as well as make money for those who used it. Since their first acquaintance, Frances Allen knew that Lucille Sehauf had some type of connection with this construction method and knew the Schaufs were interested in building projects of the type involved in this action.
Prior to dates here material, and on or about October 27, 1965, the defendants Lucille and Richard Sehauf, and one R. W. Willey incorporated and were the owners of Development Systems, Inc., which was formed to provide consultant and sponsorship services for the development of real estate projects from conception to completion. The corporate office was in Wichita; Willey was president, Richard Sehauf was vice president, and Lucille Sehauf was secretary-treasurer. The defendants and Willey had been working with a building construction project in Wellington, Kansas, which was to be financed through the Federal Housing Administration. Their involvement was through Development Systems, and the Wellington project was controlled by one Charles E. Barnett who held the land options for the project and who was dealing with F. PI. A. as the sponsor.
On February 21, 1966, the defendants executed, along with R. W. Willey, agreements to incorporate the three corporations here involved, to be known as Kan-Fran, Inc., Investment Systems, Inc., and Construction Systems, Inc., for the purpose of developing the Mee-Strong construction method. The agreements provided, among other things, that the capital stock of each corporation would consist of 1,000 shares of common stock with par value of $100. The agreements further provided that each of the parties had rendered valuable services in connection with the promotion and organization of the business to be incorporated and it was mutually agreed they would receive as compensation for their services the following common stock at par value in each corporation: Kan-Fran, Lucille Schauf 190 shares, Richard Schauf and Willey 180 shares each; Investment Systems, Lucille Schauf 265 shares, Richard Schauf and Willey 255 shares each; Construction Systems, Lucille Schauf 265 shares, Richard Schauf and Willey 255 shares each.
With respect to Kan-Fran, the agreement provided that an option for 225 shares of common stock at par value of $100 per share be granted to the parties as follows: Lucille and Richard Schauf 75 shares each, and Willey 75 shares, the option to be exercised in whole or in part within ten years from February 21, 1966. The Kan-Fran agreement further provided that 200 shares of common stock would be sold to two other parties at par value of $100 per share, with the understanding that Lucille Schauf would receive $7,500 for the following: $500 incorporation expenses, $1,000 capitalization fee, and $6,000 for assignment to Kan-Fran of the sole right to use the Mee-Strong construction method in Kansas.
Following the execution of the agreements to incorporate the three corporations, and on February 21, 1966, a meeting of the incorporators was convened to elect the board of directors of each corporation. R. W. Willey was elected president, Richard Schauf, vice president, and Lucille Schauf, secretary-treasurer. At the meeting resolutions were adopted which generally placed into effect the provision of the agreements theretofore executed.
On the same day, February 21, 1966, Lucille Schauf telephoned Frances Allen at her work at Boeing and advised her she had acquired the sole right to the use of the Mee-Strong construction method and was anticipating the formation of some corporations to develop the method and follow it through; that additional capital was needed to make it go faster, and she knew of Mrs. Allens interest; that if Mrs. Allen was interested, to come visit about it.
On February 23, 1966, Mr. and Mrs. Allen went to the home of Mr. and Mrs. Schauf in Garden Plain, Kansas. At that meeting, the Allens agreed with the Schaufs to invest $10,000 in the venture. Mrs. Allen felt the use of the Mee-Strong construction method would have a great impact on the construction industry and would be the type of thing that could realize some return on her investment. That was the only reason she was interested in investing her money. The record shows that at the February 23, meeting, the Allens were advised of the basic ideas and planned operations of the three corporations. They were told that Lucille Schauf would assign her rights to the use of the Mee-Strong construction method to Kan-Fran for $6,000; that Kan-Fran would be the “mother corporation” and would completely control Investment Systems and Construction Systems, which were associated or subsidiary companies with specific functions, but that all dividends would be paid from Kan-Fran, and that if par value was paid for the shares of stock in Kan-Fran, no money was to be paid for the shares of stock in the other two corporations. The Allens were told there was a need for $20,000 actual cash investment; that the Gillens would invest $10,000, and if the Allens did not desire to invest, the Gillens would invest the $20,000, which would be the only paid-in working capital of the corporations. The Allens were also told that if they did invest, they would receive ten percent of the corporate stock for which they would pay $10,000, which was to be used only in the three corporations, and no money would be transferred to Development Systems. The Allens were further told that Lucille and Richard Schauf would each receive promotional common stock in each corporation for services rendered, and specifically they would receive 190 and 180 shares respectively, of common stock in Kan-Fran. They were also told Willey would receive promotional stock in each corporation and would receive 180 shares of common stock in Kan-Fran.
The record further indicates the Allens were advised the Schaufs and Willey had a stock option which could be exercised at a later date to acquire stock in Kan-Fran at par value. The reason for the option was, as related by Lucille Schauf, to enable the defendants to put an equal amount of money into the corporations as the other couples. There was evidence that prior to the time the investment was made, Thomas Allen had a chance to study in detail a document prepared by Willey containing the operational plan for Development Systems and the three corporations here involved. The document was prepared after the February 23, meeting and was plaintiff’s exhibit 1. The document was termed a "prospectus” by the plaintiffs, but in no sense was it an offering of securities to the public. It was at most, as described by the trial judge, a proposed operational plan.
On March 20, 1966, Frances Allen, by a check signed Frances Loop, and drawn from her individual account, paid Lucille Schauf $10,000 for the common capital stock in each of the three corporations. At that time it was fully understood by the Allens and the Schaufs that the Wellington project did not pertain to the Allens and that they acquired no interest in Development Systems; their investment pertained only to the proposed corporations Kan-Fran, Investment Systems, and Construction Systems. Following the chartering of the three corporations and the filing of the articles of incorporation with the Secretary of State on March 9, 1966, the plaintiffs received certificates for 100 shares of stock in each of the three corporations on or about April 20, 1966, which were issued in the names of Thomas and Frances Allen.
Early in 1966, Lucille Schauf telephoned George M. Gillen in Phoenix, Arizona, and he agreed to invest $10,000 in the three corporations. He stated he and his wife thought the Mee-Strong construction method had a potential since it was something new, easily constructed and economical. He was interested in the method of construction and did not inquire about the corporate structure or the details of how the three corporations would be operated because the Schaufs were his friends and he trusted them. He stated there were to be two parties to purchase stock — he and his wife as one party, and Mr. and Mrs. Allen as the other party — and that each was to invest $10,000 and receive 100 shares of common stock in each corporation.
Subsequent to the Allens’ purchase of their stock and prior to April 28, 1966, Thomas Allen was elected president of Investment Systems and Frances Allen was elected secretary. On April 28, 1966, the board of directors of Investment Systems decided to pur chase the sponsorship rights of the Wellington project from Charles E. Barnett. The project consisted primarily of land options, contracts and F. H. A. applications which were assigned to Investment Systems on or about that date upon receipt of $2,500.
In connection with the foregoing, and on May 13, 1966, Investment Systems entered into a written contract to pay Development Systems $6,000 for sponsorship services on the Wellington project, payable upon the signing of the contract. On that date, Thomas Allen, as president, and Frances Allen, as secretary, of Investment Systems, signed the contract with Development Systems, and R. W. Willey signed as president and Lucille Schauf attested it on behalf of Development Systems.
Sometime during the latter part of May 1966, the plaintiffs claimed to be dissatisfied with the management of the three corporations and requested an accounting and the minute books and records of Kan-Fran, Investment Systems, and Construction Systems. On a date not disclosed by the record, this action was subsequently filed.
The plaintiffs’ amended petition was framed in three counts. The first count claimed a violation of the Kansas Securities Act by the sale of unregistered securities. (K. S. A. 17-1255 to 17-1259.) The second count claimed a violation of the Kansas Securities Act by the sale of securities by means of various misrepresentations of material facts and omissions to state material facts, contrary to K. S. A. 17-1268. Recovery under both counts was sought pursuant to the provisions of the latter statute. The third count claimed misuse of corporate funds but lacked the requisite allegations to support a stockholder’s derivative action. Following the defendant’s attack on the sufficiency of the third count, the plaintiffs were granted the opportunity to remedy the defect and further amend, but they failed to do so, and the third count for relief was dismissed.
The defendants’ answer alleged that registration of the securities sold to the plaintiffs was not required since the sale of the securities in question was an isolated transaction (K. S. A. 17-1262), and denied that misrepresentations or omissions of material facts were made.
Two pretrial conferences were held and two pretrial orders were made. At the trial, the district court stated, “I think our pretrail conference time was wasted” since we failed “to list the misrepresentations charged,” and that, “[s]ince the issues were not defined in detail in the pretrial conference order, the Court is resorting to the pleadings for determination of the issues of this case. Only the issues as stated in the pleadings will be considered.”
The misrepresentations or omissions complained of by the plaintiffs were set out in the second count of their amended petition. While the plaintiff Frances Allen did not take the witness stand to testify in her own behalf either during the plaintiffs’ case in chief or in rebuttal, the defense rested its case upon the introduction of Mrs. Allen’s deposition in which she testified the only untrue statements or omissions to which she made any contention in the lawsuit were those contained in paragraphs a, b, c and d of the second count of the amended petition. In that count the plaintiffs alleged that the defendants, in order to induce the plaintiffs to purchase the stock in question, represented to them the following, which is summarized:
a. That the president of Development Systems was a salaried employee of the corporation; that such corporation would bear all initial operational and administrative expenses of the three corporations here involved, whereas, in truth, Development Systems was only a paper corporation with no capital funds and was incapable of functioning and that the president was being paid no salary because of lack of capital, but instead was being funded for living expenses by Lucille Sehauf, personally.
b. That plaintiffs would purchase ten percent of the capital stock and that the defendants and others had or would purchase additional stock, except for 180 promotional shares to be issued to a third party, so as to provide from the sale of at least 570 shares of stock in Kan-Fran at par value, sufficient paid-in working capital for corporate projects. In addition, that Kan-Fran would be the parent corporation with Construction Systems and Investment Systems being wholly owned subsidiaries. In truth, plaintiffs’ $10,000 constituted 50 percent of all paid-in capital of the three corporations with additional $10,000 paid in by a third party not connected with the defendants in any way, and, notwithstanding, Lucille and Richard Sehauf issued stock to themselves at $100 par value in the three corporations as follows: Kan-Fran 190 and 180 shares, respectively; Construction Systems 265 and 255, respectively, and Investment Systems 265 and 255 respectively, and in addition, unknown to the plaintiffs, defendants had an option for another 225 shares of stock in Kan-Fran; all resulting in the defendants having complete control of the corporations without haying paid into the corporate structure any money contrary to all representations made to the plaintiffs.
c. That Lucille Schauf had in her name a certain valid franchise on a patented method of construction which was purchased by Kan-Fran for the amount of $6,000, said money being a part of the $20,000 paid to Lucille Schauf for the issue of stock in the three corporations, whereas, in truth, the franchise contract was of no value whatsoever, was capable of being revoked by third parties, and that defendants Schauf and others had defaulted in certain contractual provisions so as to render the franchise contract void.
d. That all monies received for stock would be paid into a capital account, whereas, in truth, only $10,000 of the $20,000 received was ever deposited to any of the corporate accounts.
Upon trial, the record indicates the plaintiffs attempted to broaden the issues raised by the pleadings and reflected in the pretrial orders. In their efforts to introduce evidence, the court made rulings excluding certain evidence about which the plaintiffs complained in their statement of points, and are hereafter noted. At the conclusion of the evidence, the district court made oral findings and rendered judgment as follows:
“That the sale of corporate stock to the plaintiffs by the defendants was an isolated transaction under the provisions of K. S. A. 17-1262 and consequently registration of such securities was not required under the provisions of K. S. A. 17-1255.
“That the plaintiffs failed to sustain the burden of proof that the defendants or any of them had offered or sold a security to the plaintiffs by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made not misleading.”
Was the sale of the stock to the plaintiffs an “isolated transaction”? The term came into our law in 1957 when the Legislature enacted the present Kansas Securities Act (K. S. A. 17-1252 et seq.) and repealed the Securities Act of 1929. The latter Act contained provisions with respect to “isolated sale” and defined that term generally as the sale of a security in the course of repeated and successive sales of the same issue. Decisions from foreign jurisdictions cited by the plaintiffs defining the word “isolated” and interpreting statutes using the words “repeated and successive sales” as used in our former Act, are not helpful since that Act has been repealed.
The question presented is one of first impression and requires a consideration of K. S. A. 17-1262 and pertinent regulations adopted by the securities commissioner.
K. S. A. 17-1262 provides, insofar as it is relevant to this action, as follows:
“Except as hereinafter in this section expressly provided, sections 3 [17-1254] through 9 [17-1260], inclusive, of this act shall not apply to any of the following transactions:
“(a) Any isolated transaction, whether effected through a broker-dealer or not.
“(h) The issue of stock of a domestic corporation to not exceed ten (10) incorporators: Provided, Subsequent transfers of such stock by the owner thereof shall be subject to the provisions of the securities act, except to such extent that the same may be exempt under the terms of subdivision (a) of this section.”
In passing, we note that subsection (h) was amended in 1967, (1968 Supp. K. S. A. 17-1262) to exempt not exceeding fifteen (15) incorporators. The amendment is not applicable to, nor does it control the outcome of this litigation in any way.
Another section of the Kansas Securities Act here pertinent is 17-1270, which reads in part:
“(a) This act shall be administered by the securities commissioner of Kansas, who shall be appointed by the state corporation commission, and shall receive such compensation as may be fixed by the state corporation commission.
“(f) The commissioner may from time to time make, amend, and rescind such rules, regulations and forms as may be necessary to carry out the provisions of this act. In prescribing rules, regulations and forms, the commissioner may cooperate with the securities administrators of the other states and the securities and exchange commission with a view of effectuating the policy of this state to achieve maximum uniformity in the form and content of registration statements, applications, and reports wherever practicable. All rules, regulations and forms of the commissioner shall be published. No provision of this act imposing any liability applies to any act done or omitted in good faith in conformity with any rule, regulation, form, or order of the commissioner, notwithstanding that the rule, regulation, form or order may later be amended or rescinded or be determined by judicial or other authority to be invalid for any reason . . .” (Emphasis supplied.)
At the time of the transactions in question, the securities commissioner had adopted and published regulations pursuant to the statute. (17-1270 [/].) These regulations are filed with the Revisor of Statutes (1968 Supp. to K. S. A. 77-415 et seq), and are not shown to have been disapproved by the Legislature. Volume 2, Kansas Administrative Regulations, 81-1-1 then provided and now provides in part as follows:
“Definition of terms. As used in these rules and regulations, and in the forms, instructions and orders of the securities commissioner, the following meanings shall apply, along with those which may hereinafter appear, to the extent that they are not inconsistent with the definitions provided by 17-1252 of the Kansas securities act or unless context otherwise requires:
“Isolated transaction. A security or securities shall be deemed to have been sold by a seller in an isolated transaction, whether effected through a broker-dealer or not, where the number of persons solicited in this state in any one 12-month period on behalf of such seller with respect to such securities shall not exceed four.”
No contention is made that the regulation is void as going beyond the legislative authorization, and in their brief the plaintiffs impliedly recognize its validity. (1968 Supp. 77-425.) In defining “isolated transaction” as not exceeding four persons solicited, the securities commissioner may have given consideration to Elting v. Pickett, 190 Kan. 54, 64, 372 P. 2d 261, where it was held that separate sales of an undivided working interest in four separate off and gas leases were isolated transactions under the former statute. (G. S. 1949, 17-1225 [1].) Be that as it may, where statutory enactments create a situation where official duties which must be performed which are not clearly defined or prescribed in detail, the operative interpretation given thereto by the officers and official boards whose duties are to carry the legislative policy into effect is helpful, and may be entitled to controlling significance. (Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 607, 371 P. 2d 134, 93 A. L. R. 2d 1312, and cases cited.) The general rule is sound and in this case the securities commissioner was directed by the Legislature to adopt regulations to carry the Act into effect. As indicated, the Act expressly provides that none of its provisions imposing any liability applies to any act done or omitted in good faith in reliance upon the commissioner s regulations notwithstanding they may later be determined to be invalid. We do not pass upon the wisdom of Regulation 81-1-1, but if it is applicable to the transactions in question, we are of the opinion the defendants were entitled to rely upon its provisions defining an “isolated transaction.”
The defendants assert the evidence was undisputed that there were only two persons who were solicited and to whom stock was sold. One of the persons solicited was Frances Allen to whom stock was sold in the state of Kansas, and the other was George M. Gillen of Phoenix, Arizona, who was solicited and sold stock by means of a telephone call from Lucille Schauf in Wichita to Phoenix. They argue they are not liable for the sale of unregistered securities as a matter of law, and contend the commissioner’s regulations exempt the transactions involved because there were less than four solicitations in number.
The plaintiffs contend that Regulation 81-1-1 is not applicable under the facts and circumstances of this case and that the defendants’ contention does not conform to the legislative intent in 17-1262. They argue that the sale of the stock in question was by the corporation, and that giving the defendants the benefit of all presumptions of counting the Allens and the Gillens as only two persons solicited instead of four, and forgetting about the other two corporations, still there were transactions involving the issuance of stock to not less than five persons, namely: Lucille Schauf, Richard Schauf, R. W. Willey, the Allens, and the Gillens.
We think the plaintiffs misconceive the effect of transactions exempted from registration by 17-1262. Whether a particular transaction comes within the provisions or exemptions of an act regulating the sale of securities depends on the language of the statute and the nature and effect of the transaction. (53 C. J. S., Licenses, § 76, p. 767.) Insofar as here applicable, the statute clearly grants two types of exemptions. The first under subsection (a) as being an isolated transaction whether effected through a broker-dealer or not, and the second, to stock isssued to the incorporators of a domestic corporation of not exceeding ten, now fifteen, in number. Conceding, as the plaintiffs do, that five persons were issued stock, the statute (17-1262 [h]) provides that the stock issued to the incorporators Lucille Schauf, Richard Schauf and R. W. Willey was expressly exempt from registration, there being less than ten in number, thus leaving only the two transactions involving the plaintiffs and the Gillens to be measured by Regulation 81-1-1. No contention is made that the Schaufs or Willey sold the plaintiffs stock which was isssued to them as incorporators, thus requiring consideration of the proviso in subsection (h).
The plaintiffs basically contend that the sale of the stock by the corporation was not exempt under subsection (a) of the statute. The transaction in question was not effected through a broker-dealer as defined in 17-1252 (c), but was effected by the corporation’s sale of stock at par value in Kan-Fran through Lucille Schauf.
We are of the opinion the exemption afforded by subsection (a) is available to the corporation which, according to the plaintiffs, isssued the stock, and since such issuance involved only solicitation and sale of stock to two persons, the two transactions are deemed to be “isolated” within the intent and purpose of 17-1262 and the commisssioner’s regulations. In view of the foregoing and since the exemption afforded by 17-1262 (h) does not preclude an exemption under subsection (a), it is held there was no violation of the Act for the sale of unregistered securities.
As indicated, the plaintiffs rely upon 17-1268 for recovery under the second count of their amended petition. The statute creates a civil liability where a person:
". . offers or sells a security ... by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading . . .”
The first essential element for recovery under the statute is that the person selling the security makes an untrue statement of a material fact or an omission to state a material fact. Materiality was defined in McGuire v. Gunn, 133 Kan. 422, 300 Pac. 654, as follows:
“A representation is material where it relates to some matter which is so substantial and important as to influence the party to whom it is made. (14 C. J. 602, 605.)”
See, also, Restatement of the Law, Restitution, Sec. 8 (2), p. 32.
It is at this point where the plaintiffs’ evidence failed. The district court found they had failed to sustain the burden of proof that the defendants or any of them had offered or sold stock to the plaintiffs by means of any untrue statement of a material fact or omission to state a material fact. If there is substantial evidence to support the district court’s finding on this point, an affirmance of the judgment is required unless trial errors prejudicial to substantial rights of the plaintiffs occurred. Our cases are legion on that point. An appellate court is not concerned with the credibility of witnesses or the weight of their testimony. It is concerned only with evidence which supports a district court’s findings of fact and not with that tending to support a contrary conclusion. In Denison Mutual Telephone Co. v. Kendall, 195 Kan. 227, 230, 231, 403 P. 2d 1011, it was said:
“. . . it should be noted that in an action springing from alleged false representations, an appellate court, by force of circumstances usually attendant upon a trial of such an action, must give considerable weight to the findings and conclusions of the trial judge who had an opportunity to observe the demeanor of the principals on the witness stand. Moreover, it has long been settled that if there is present in the record substantial competent evidence in support of the findings of the trial court, it is beyond the province of this court to disturb the judgment on appeal. (Fine v. Neale Construction Co., 186 Kan. 537, 352, P. 2d 404; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
“. . . It is the duty of the trier of the facts, not the appellate court, to weigh conflicting evidence; and the appellate court, in determining the sufficiency of evidence to support findings of fact, is required to view all testimony in the light most favorable to the prevailing party. (Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998; International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, 501, 393 P. 2d 992.) This court is concerned only with whether or not there was any substantial competent evidence to support the trial court’s finding and conclusion that plaintiffs failed to sustain the burden of proof that Kendall made any false representations. . . .” (l. c. 230,231.)
See Renner v. Monsanto Chemical Co., 187 Kan. 158, 168, 354 P. 2d 326, and also our recent cases of Griffin v. Price, 199 Kan. 649, 651, 433 P. 2d 464, and Sherbert v. Matt, 200 Kan. 87, 88, 434 P. 2d 549.
Was there substantial evidence to support the district court’s findings? It would serve no useful purpose to review in detail the testimony of each of the witnesses. Portions of their testimony have heretofore been summarized in accordance with the rule that it is of no consequence that there may have been contrary evidence adduced at the trial which, if believed by the district court, would have compelled entirely different findings of fact and an entirely different judgment. It is evident the district court believed the testimony of Lucille Schauf and found that the plaintiffs were not misled in any respect and had a good understanding of the entire arrangement. This is confirmed by significant portions of the district court’s oral findings from the bench at the conclusion of the trial. The court stated:
“. . . Because the people who entered into the transaction had a good general nature of the plan, all they were doing was investing in a plan — in an idea that was being proposed. In fact, Exhibit 1 is nothing more than that. It hardly can be said to be a statement of facts — a projection. What we hoped to accomplish — and that is what was invested in here — we would have to conclude the Allens made up their minds to invest in the project at the meeting of February 23rd. This is not disputed any longer and at that point it was just a plan — just an idea largely. There were a few facts in existence then but I couldn’t say the facts in existence on that date were material facts. Whether we accept the reason plan theory which has been advanced by the plaintiffs or the value of the stock theory which has been advanced by the defendants, or some other theory, the idea was quite well known. To accept the plaintiffs’ theory here, we would have to talk about misrepresentation of facts which appeared later and which may point more to a disagreement or dissatisfaction with management than to misrepresentation or omission of material facts in existence on the day that the investors decided to invest. (Emphasis supplied.)
With respect to paragraph “a” of the second claim for relief, there was evidence that Willey, the president of Development Systems, was a salaried employee of the corporation. As to whether that coloration would bear initial operational and administrative expenses of the three corporations, Allen testified that the Schaufs told him and Mrs. Allen the corporation would bear all such expenses and that no money would be needed from the three corporations for that purpose. Lucille Schauf testified that she told the Allens that Development Systems already had the office, telephone, etc., set up which could be used in connection with the corporate work of Kan-Fran and the other two corporations. This administrative expense was recognized by Mrs. Allen in her deposition. No evidence was offered by the plaintiffs to show that this representation was not true.
While various contentions are made with respect to representations that the Wellington project had received the approval of F. H. A., there was no mention of such a representation in the plaintiffs’ amended petition. Re that as it may, Mrs. Allen testified in her deposition she made no claim to misrepresentations or omissions other than stated in her amended petition. Moreover, the Allens testified they fully understood they were acquiring no interest in Development Systems.
The principal issue at the trial related to the issuance of common stock in Kan-Fran to Lucille Schauf and Richard Schauf. During the trial it was stipulated that the plaintiffs made their investment knowing that Lucille Schauf and Richard Schauf would be issused 190 and 180 shares, respectively, of common stock in Kan-Fran at par value, and that they paid no cash to the corporation for the stock. The only issue then was whether the Schaufs told the Allens they would receive the stock in those amounts as promotional stock for services rendered and pay no cash for it. On this point there was sharp conflict in the testimony. Thomas Allen testified they were not told that the Schaufs were not paying money for their stock, and, further, that the Schaufs had an option to purchase additional stock. On the other hand, Mrs. Schauf testified the Allens were willing that Mrs. Allen make the investment only if the Schaufs had corporate control, and that she told the Allens at the February 23, meeting she and Richard were taking promotional stock and were paying nothing for it, and also that they had an option to purchase additional 75 shares each, in Kan-Fran.
It was within the province of the district court, who saw the witnesses and observed their manner and demeanor on the stand, to assess the weight and value of their testimony. (Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1.) The fact that Frances Allen did not take the witness stand to testify permitted the district court to legitimately presume that her testimony would be unfavorable to her own cause. (Henks v. Panning, 175 Kan. 424, 430, 431, 264 P. 2d 483; Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 551, 407 P. 2d 513.) Be that as it may, there was ample substantial evidence to support the findings of the district court that the defendants had not offered or sold the stock by means of any untrue statements or omissions to state a material fact. This in itself precludes recovery under the statute, and warrrants no discusssion of the effect or application of its provisions.
The plaintiffs contend it was error not to consider facts and events occurring between February 23, and March 20, 1966. The plaintiffs’ brief fails to state and the record fails to disclose any specific representation claimed by any witness to have been made after February 23, which was not also claimed by the witness to have been made on or before February 23. The plaintiffs reproduced in their brief, excerpts from the district court’s extemporaneous oral findings to which they supplied emphasis. Those oral findings have heretofore been set forth. Emphasized in the manner there quoted, the court’s statement reveals that the source of the plaintiffs’ complaints were about the management of the corporation contained in their third cause of action, which was dismissed. We perceive no prejudicial error in this respect.
The plaintiffs urge it was error to rule that a shift in corporate control was not material. It is claimed the defendants admitted that the plaintiffs were not told of the increased number of shares to be issued to Lucille and Richard Schauf in Investment Systems and Construction Systems. The record reflects that to be the case. But there was never any issue concerning the fact that the Schaufs in fact had control of the corporations. As indicated, the Allens would not invest unless the Schaufs had corporate control, and they knew of the Schaufs’ option to purchase additional stock in Kan-Fran. Likewise, they were informed that Kan-Fran was the key corporation of the three, and held the Mee-Strong franchise; that it controlled the other corporations and the payment of dividends, and that if they paid par value for their stock in Kan-Fran, they would pay nothing for their stock in the other corporations. Those facts were uncontradicted. As indicated, the district court obviously believed the testimony of Lucille Schauf and found that the plaintiffs were not misled and had a good understanding of the arrangement. Any effort by the plaintiffs to persuade this court on appellate review to substitute its judgment for that of the district court as to whose testimony to believe is an ingenious but fruitless argument.
It is contended the district court erred in excluding plaintiffs’ Exhibits 3, 4, 12 and 13. Exhibit 3 was the minutes of a directors’ meeting of Development Systems in November 1965, which, it is claimed, would have revealed the defendants wanted to take money from the corporation as soon as it came in to repay loans made by them. The evidence was speculative at most; the directors’ meeting occurred long prior to the incorporation of the three corporations here involved. Moreover, it was not really material; the plaintiffs purchased no stock in Development Systems and the only relationship they had to that corporation was that an office with a telephone was available for the use of the other corporations. At the time of the plaintiffs’ investment, Development Systems was involved with Barnett in the Wellington project and there was evidence the plaintiffs knew they had no interest or involvement in that project. It is contended the Allens were told no money would be transferred to Development Systems. That was the case until Investment Systems, acting through Thomas Allen as president, and Frances Allen as secretary, entered into a written contract with Development Systems to pay the latter corporation $6,000 as a service fee in connection with the Wellington project which had been purchased by Investment Systems. Obviously, that transfer of funds was made possible by the plaintiffs’ own voluntary act. Exhibit 4, had it been admitted, would have disclosed that $2,500 was paid to Barnett to purchase his interest in the Wellington project. Action to purchase Barnett’s interest was taken by the Board of Directors of Investment Systems of which the plaintiffs were president and secretary. As previously indicated, evidence of that character was before the district court and clearly the error, if any, was not prejudicial and did not affect the substantial rights of the plaintiffs. Exhibits 12 and 13 were statements of expenses and disbursements which in effect related to the plaintiffs’ third cause of action. What happened to the money was not an issue after the plaintiffs abandoned their third claim for relief. However, it is claimed that Exhibit 13 would have revealed that Lucille Schauf was advancing money to Development Systems and was also paying the salary of Willey as president. There was evidence that money was loaned to Willey from Development Systems, but there was no evidence it was for his living expenses. We cannot overlook there was a general finding in favor of the defendants, and such a finding determines every controversial question of fact in support of which evidence was introduced. A general finding of fact by a district court raises a presumption that it found all facts necessary to sustain and support the judgment and such a finding will not be disturbed on appeal if there is substantial, though controverted, evidence to sustain it.
It is further claimed the district court limited the plaintiffs’ examination of Lucille Schauf as to services the defendants rendered in exchange for the stock. There was evidence that prior to February 1966, $25,000 had been paid for the Mee-Strong construction franchise and Lucille Schauf sold the process to Kan-Fran for $6,000. The district court gave the plaintiffs considerable latitude in examining Lucille Schauf concerning the services rendered by the Schaufs for the corporate stock issued to them. However, that was not really an issue in the trial. As indicated, it was stipulated the Allens knew the number of shares of stock to be issued to the defendants in Kan-Fran and that they would pay no money to the corporations for it. There was conflicting evidence on the point, but the district court obviously believed the defendants’ testimony. Again, this point was resolved by the court’s finding (K. S. A. 60-252 [a]).
The plaintiffs lastly contend the district court erred in excluding the written interrogatories submitted by the plaintiffs to Lucille Schauf and her answers thereto. At the close of the trial, the plaintiffs moved to make those interrogatories and answers a part of the evidence. The interrogatories pertained to the question whether Development Systems had obtained the F. H. A. approval for the Wellington project. The court refused to admit the interrogatories.
We agree with the plaintiffs that as an abstract proposition, an swers to interrogatories are legitimately subject to consideration by the trier of the facts. (K. S. A. 60-226 [cl] and 60-233.) However, to be entitled to consideration, the answers must be material and relevant. In this case the answers to the interrogatories pertain solely to the F. H. A. approval of the Wellington project. That was not an issue raised by the pleadings, nor was it reflected in the pretrial orders, and was not an issue in the lawsuit. There was no fundamental error in the district court’s ruling excluding the interrogatories.
Other points have been urged by the plaintiffs. We wish to state none of those contentions have been overlooked. Each has been given careful consideration. It is not enough to disturb a judgment that some error or impropriety transpired during a trial, and error, standing alone, does not raise a presumption of prejudice. Reversal is proper only where it is affirmatively established that the error prejudicially affected the substantial rights of the defeated party. (Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597.) In Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 369 P. 2d 338, it was said:
“. . . The law does not guarantee to every litigant a perfect’ trial. (State v. Severns, 184 Kan. 213, 222, 336 P. 2d 447.) It does, however, guarantee to him a fair trial — and there is nothing in the record to indicate that such was not had in this case. In Cook v. Railway and Bridge Co., 101 Kan. 103, 165 Pac. 803, it was said:
. . It is not enough to disturb a judgment that some error or impropriety transpires in a trial. It is necessary that the appellant go further and show that the matter complained of prejudicially affected the net result.’ (pp. 105, 106.)” (l.c. 319,320.)
The district court’s determination of the facts is supported by substantial evidence and since the sale of the stock has been determined to be an isolated transaction under the statute and pertinent regulations, we affirm the judgment of the district court. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, T. M. Haynes, has appealed from a judgment granting a divorce on the grounds of extreme cruelty and gross neglect of duty to plaintiff-appellee, Dorothy E. Haynes.
Plaintiff was a widow, sixty years of age, and defendant a widower, sixty-four years of age, at the time of their marriage on April 2, 1966. After living together for about three months the parties separated and plaintiff filed this action on August 1, 1966. Plaintiff filed a bill of particulars with the trial court and defendant filed his answer in the form of a general denial praying that a divorce be denied.
Defendant offered no evidence at the trial and after hearing plaintiff’s evidence the trial court announced its findings; pertinent portions of which we quote:
“All right, gentlemen, I don’t have any problem with this lawsuit, and this is the finding of the Court, that the defendant did not provide a home for the wife, he failed to fulfill his promises in this regard, he lived in her home instead and also failed to provide money in keeping with his pretended means. Following the honeymoon she bought the automobile, a new automobile, she paid for much of the household expenses and I’m satisfied that in this approximately 10 weeks following the honeymoon he lived primarily on her money and that immediately following the honeymoon his attitude towards her and her friends and her money became intolerable and amounted to gross neglect of duty and extreme cruelty. Now, the defendant’s principal defense in this case, in fact, he didn’t take the stand in his own defense, is that she hasn’t proved it with some corroborating evidence. Now, not every detail of plaintiff’s evidence has to be corroborated in a divorce suit but a sufficient amount of it has to be in order to give credence and substance to her testimoney in regard to the grounds of divorce that she claims. I think there was sufficient corroboration now that he lived in her house and also in the exhibits that plaintiff has presented, exhibits 1 through 11, and it’s been substantiated to some extent by the testimony of other witnesses. . . .”
On appeal defendant contends that plaintiff’s evidence is insufficient to support the judgment and even if sufficient it is not corroborated, as required by K. S. A. 60-1609 (d).
Plaintiff’s evidence consisted of her testimony, that of three other witnesses, and a number of exhibits offered for purposes of corroboration.
In his brief defendant concedes that this court will sustain a trial court’s findings in a divorce case where there is any competent evidence to support it.
Plaintiff testified that the parties met between Christmas and New Years of 1965 and were married on April 2, 1966, that prior to the marriage the parties entered into a prenuptial agreement which was admitted in evidence. Plaintiff described her financial assets as a home and other real estate, a bank account, a savings and loan account, farm acreage, rental houses and buildings and money in her attorney’s hands. She further testified that during the period of their courtship defendant lived in Kansas City and she lived in Topeka. Defendant told her that he was by profession “a highly trained engineer” and the senior member of Haynes and Associates, Engineers; that he had been a general contractor and constructed many buildings in Kansas City; that he was a partner in the T. & H. Construction Company, Inc.; and that he hoped to be active until he recovered a $50,000 or $60,000 investment he had in his “unique swimming pool casting and design.”
Plaintiff further testified, that relying on statements of defendant, she understood that after their marriage they were going to live in Kansas City in a home provided by him. She prepared an announcement of their marriage for publication in the Topeka Daily Capital, a copy thereof was admitted in evidence and included the following:
“After a wedding trip to Miami, Nassau, and Washington, D. C., the couple will be at home in Kansas City where Mr. Haynes is senior member of Haynes and Associates, Engineers.”
Plaintiff testified that she submitted the announcement, before it was published, to the defendant who looked it over and expressed no disapproval.
After the marriage the parties took a trip lasting approximately three weeks and terminating in Washington, D. C. Plaintiff testified that defendant indicated the purpose of the trip to Washington was to visit with a congressman relative to loans for small communities for recreational purposes pertaining to the swimming pool construction business. When the parties arrived in Washington defendant did not have the business records necessary to confer with the congressman and he was running out of money. He requested his son in Kansas City to forward the records and to advance money. Defendant was advised by his son that there was no money to send and that there were insufficient funds to meet the current payroll. Plaintiff advanced some money to defendant, which was repaid, and the parties returned to Kansas City.
The trial court’s findings that defendant failed to provide a home and that they lived primarily on her money are supported by the testimony of plaintiff and corroborated by exhibits in the form of receipts for utility bills and cancelled checks written by both plaintiff and defendant. The checks were written on a bank account of plaintiff to which defendant’s name was added after the marriage. Defendant made one deposit in the amount of $600, more than half of which was used for the purchase of a new rug for plaintiff’s home. Plaintiff testified there was money going out but only rent collections on her properties coming in.
Plaintiff also testified that she was “humiliated to death” because they did not move to Kansas City, as stated in the announcement of their marriage, but that she could not bring herself to press defendant for an explanation when there was not enough money to meet the payroll of defendant’s business.
A witness described plaintiff’s embarrassment when the subject of the failure to move to Kansas City was brought up during a visit in plaintiff’s home.
Plaintiff further testified that she was unable to communicate with defendant about their affairs; she knew defendant did not love her —that all he cared about was her money; that he complained about the irregular appearances of her tenants when they came to pay the rent, and that he was annoyed when tenants called to request repair work on the rental properties. She stated that defendant usually did the necessary repair work but complained about it and also complained when she paid anyone else to do the work. Plaintiff testified defendant made it plain that her friends were strangers to him. Plaintiff further testified that when she confronted defendant concerning his change in attitude toward her he refused to discuss the matter.
A witness called by plaintiff testified that defendant had told her the parties were going to live in Kansas City after the marriage; that on another occasion defendant criticized plaintiff for making snap decisions; and that the parties had lived in plaintiff’s home since the marriage.
One of plaintiff’s tenants testified that on one occasion when he asked plaintiff to have an incinerator fixed he was asked by defendant “why I didn’t fix it or couldn’t I fix it.”
Another witness called by plaintiff testified that he and his family were close friends of plaintiff and visited the parties after the marriage. He stated that he explained to plaintiff why he and his family had not called sooner because he thought the parties were living in Kansas City. He also stated he immediately changed the subject because the plaintiff’s face colored.
Interrogatories submitted by plaintiff to defendant, prior to trial, disclose that there were no books and records of Haynes and Associates, Engineers; that the T. M. Haynes Corporation was inoperative; and that defendant was not a stockholder of the T. & H. Construction Company, Inc., but had only a right of assignment to some of the stock.
It is true, there is no showing of physical violence on the part of defendant, but this court has frequently held that physical abuse is not required to constitute extreme cruelty. (Saint v. Saint, 196 Kan. 330, 411 P. 2d 683; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102; Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127.)
The trial court specifically found that defendant’s attitude toward plaintiff, her friends and her money, became intolerable. A course of conduct on the part of one spouse which has become intolerable to the other, so as to disrupt domestic harmony and to destroy legitimate matrimonial objectives, has often been characterized as behavior amounting to extreme cruelty. (Saint v. Saint, supra.) Furthermore, it is not always necessary that such conduct should continue over a long period of time. (Brown v. Brown, supra; Davis v. Davis, 162 Kan. 701, 178 P. 2d 1015; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755.)
The divorce in the instant case was granted on both grounds of extreme cruelty and gross neglect of duty. These grounds for divorce overlap to a considerable degree. An act of misconduct may fall into either category. Cruelty has been recognized as a possible element in gross neglect of duty. (Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.) In the instant case we believe the evidence sufficient to support the judgment for divorce on either ground.
An able trial judge of many years experience heard the testimony, viewed the demeanor of the witnesses, and made positive findings as quoted. Such being the case, our judgment cannot be substituted for the findings of the trial judge on the showing made by defendant in this appeal. (Saint v. Saint, supra; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Preston v. Preston, supra; Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215.)
We are fully aware of the settled rule that the testimony given by a complaining spouse as to the delinquencies of the other spouse must be corroborated by evidence. The provisions of 60-1609 (d), supra, contain no exceptions, and courts are not permitted to nullify its intentment by reading exceptions into it. (Greene v. Greene, 201 Kan. 701, 443 P. 2d 263; Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746.) However, we believe the corroboration here to be ample under the rules for testing the sufficiency thereof, laid down in the cases cited. Corroboration need not support each and every detail of the injured party’s testimony, nor is it essential that corroborating testimony alone sustain the judgment. It is sufficient if the corroboration be such as will tend to establish some fact or facts testified to by the complaining party, which, if believed, would justify the granting of a divorce.
In Saint v. Saint, supra, the corroboration of plaintiff’s testimony consisted of the testimony of two children of plaintiff that on occasions “their stepmother would stomp or stalk from the room and betake herself to the basement, where she would pout and sulk.” In holding corroboration sufficient we stated:
". . . While neither of these witnesses were able to confirm their father’s evidence in all its details, minute corroboration was not essential to establish the validity of his case. ...” (p.332.)
This court has stated the principal reason for the requirement of corroboration has been, and is, for the prevention of collusion be tween the parties to a divorce. (Carter v. Carter, 191 Kan. 80, 379 P. 2d 311, Hoppe v. Hoppe, supra; Brown v. Brown, supra.)
In this case there is nothing in the record to indicate collusion— the contrary is clearly shown. In the instant case there is not only direct testimony, but also circumstantial evidence, which the trial court could and did believe, that defendant’s actions deeply wounded plaintiff’s feelings and worried her greatly, and that the legitimate ends of matrimony had been destroyed thereby. Corroborative testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of facts will not be disturbed on appeal. (Carter v. Carter, supra; Hoppe v. Hoppe, supra; Kelso v. Kelso, supra; Tuley a. Tuley, 168 Kan. 106, 211 P. 2d 95.)
In view of what has been said we are of the opinion the record discloses sufficient evidence and corroboration thereof, both direct and circumstantial, to support the judgment rendered by the trial court, and the judgment must be affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment and sentence on a conviction of murder in the second degree.
The defendant was a part time employee of the Kitchen Club located in Wichita, Kansas. It would appear from the record that the club was a beer joint where the drunks congregated after the closing hour for legitimate taverns and put on a real brawl.
The state presented evidence in the form of testimony and exhibits which established that the following events occurred on October 9, 1965. The deceased, Calvin Franklin, went to the Kitchen Club located in northeast Wichita with a friend in the early morning of October 9, 1965. Willie J. Barnes, the defendant, was there performing some of the duties of a helper. A fight occurred between the deceased and a man named Donald McDonald. The deceased drew a small .22 calibre pistol and fired several times in the direction of McDonald. There was at least one other gun being fired in the establishment at the same time. Four people were injured by at least two different calibre bullets. It appears that there were at least five people at the club with pistols.
At the time the gun was being fired by the deceased, McDonald struck him with a stool top knocking him down. After the deceased was hit the gun disappeared from his hand. It was not found by the police. While the deceased lay on the floor defendant took a gun, proceeded from behind the bar approaching the deceased from the direction of his feet and shot him twice, one shot striking him at the waist line below the left rib cage traveling upward and to the right lodging almost exteriorly near the right nipple area. Another shot struck him in the left buttocks lodging near the spine. The defendant then left the premises and went to his home. Before he was arrested the defendant discarded his gun which was purported to be a .38 calibre Smith and Wesson. It was not found by the police.
The defendant was charged with murder in the first degree and a trial to a jury resulted in a verdict of murder in the second degree.
Before considering the alleged errors presented by appellant it should be suggested that we have noted the state’s objection to consideration of the questions because of procedural omissions. However, we are of the opinion that the interests of the parties will be best served by a consideration of the appeal on the merits.
The appellant first contends that the trial court erred, as a matter of law, in instructing the jury as to first and second degree murder because the evidence was not sufficient to establish the elements of such offenses.
In addition to the facts heretofore stated there was additional evidence. An employee of the club who was working behind the bar with the appellant testified:
“Yes, I heard some shots and a girl at the counter fell to the floor at my feet. She said, ‘get down by me.’ I said, ‘No, I want to see what is going on.’ Two or three guns were shooting then. I couldn’t tell what was happening. I couldn’t tell who or where everybody was going. So by that time I looked — I looked — I heard someone say, ‘kill him, kill him.’ I still didn’t know what was going on. At that time I looked and Willie was coming behind me with a gun in his hand. He stepped over the girl lying on the floor and went around the counter that way. I watched him. He was going towards the bathroom. When he got almost to the bathroom I saw someone that looked like he had a white coat or jacket on lying on the floor.”
The witness also testified that the appellant was shooting but he could not tell what at.
Another witness who was present at the brawl testified:
“A. I didn’t see Mr. McDonald any more. Franklin was firing the gun. Haile Scott ran around out of here and snatched him out of the booth and they wrestled him out of the booth until they got here, and then Haile Scott took the gun from him.
“Q. He took the gun from Franklin?
“A. Yes, when Franklin went to raise up Mr. Barnes shot him. In other words, Mr. Barnes walked right around through the crowd of people while they were wrestling and when Franklin went to get up he shot him and he fell back and then he shot him again. Scott sat there for a while with Franklins head pretty close to his lap. Franklin tried to say something to him but I don’t think he made it. Then he went out the back door.”
We have no hesitancy in concluding that the evidence was sufficient to go to the jury on the question of “willful, deliberate and premeditated killing” constituting murder in the first degree under the provisions of K. S. A. 21-401. Certainly it was sufficient to go to the jury on the question of the offense being ‘“committed purposely, maliciously, but without deliberation and premeditation” constituting murder in the second degree under the provisions of K. S. A. 21-402 — the offense for which the appellant was convicted.
The appellant next contends that the trial court failed to accurately and explicitly set out and define the essential elements of murder in the first and second degree.
We cannot agree. The appellant would isolate certain instructions for the purpose of criticism. This court has laid down the rule that instructions to the jury must be considered as a whole. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261.) We do not propose to extend this opinion by reproducing all of the instructions. It will suffice to state that the instructions when considered as a whole sufficiently state the elements of the two degrees of murder.
The appellant objects to the court submitting the issue of second degree manslaughter to the jury. The appellant contends that there was not a “scintilla of evidence that would require such a charge.”
The court instructed the jury in the language of K. S. A. 21-412 as follows:
“Under a statute entitled ‘Killing After Resisting Attempt to Commit a Felony,’ the law of Kansas provides that every person who shall unnecessarily kill another, either while resisting attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of Manslaughter in the second degree.”
The appellant erroneously assumes that the court instructed under K. S. A. 21-411 dealing with killing in the heat of passion but in a cruel and unusual manner which also constitutes manslaughter in the second degree. We find no error in submitting the issue of manslaughter in the second degree as provided by K. S. A. 21-412.
We find no merit in appellant’s contention that the trial court erred in its instructions on the burden of proof and presumption of innocence.
The language complained of is essentially the same as that contained in State v. Medley, 54 Kan. 627, 39 Pac. 227, and found by1 this court to fairly state the reason for the rule as to presumption of innocence and not to be misleading or prejudicial.
The appellant last complains that the bailiff who took charge of the jury when the cause was finally submitted was not sworn as required by K. S. A. 20-312.
The complaint might be serious if supported by the record but it is not.
On the presentation of the motion for a new trial the following colloquy took place between the trial court and counsel for appellant:
“The next one, my recollection is the Bailiff was not sworn when he took the jury in charge. The record will have to show that. I want the transcript for that purpose. I haven’t seen the transcript. That is my recollection. When the jury retired to the jury room the Bailiff was not sworn to take charge of the jury.
“The Court: The Court Reporter had been deputized and sworn in the absence of the regular Bailiff.
“Mb. Sowers: But the Court did not instruct the Court Reporter as to his duties in regard to acting as Bailiff.
“The Court: Yes, that was done.”
There being nothing to the contrary we must assume that the trial court knew what it had done.
A careful examination of the record discloses no prejudicial error which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
The defendant, James Arthur Taylor, was convicted by a jury of burglary in the second degree and has appealed from the judgment of conviction and sentence.
The evidence will be summarized.
A deputy sheriff while patroling a rural area in Johnson county in the early morning discovered a burglary in progress at a county schoolhouse. In the beam of his spotlight the patrolman saw two men run from the school building. They ran toward open county in a northwesterly direction. One man was dressed in light colored clothing and the other in dark clothing. The patrolman reported these facts over his radio to a dispatcher in the sheriff’s office. A second deputy in the area was dispatched to help with the investigation. When he was about two miles northwest of the schoolhouse he overtook the defendant. The defendant, accompanied by another man, was driving a car. No other traffic was observed in the area. The deputy stopped the defendant’s car to investigate. The car’s license number was on a sheriff’s list of cars suspected of being used in recent burglaries. The defendant was recognized from pictures seen in the sheriff’s office. The deputy saw a set of walkie-talkies lying on the back seat of defendant’s car. The deputy sheriff knew this method of communication was frequently used by burglars. One man in the car was dressed in dark clothing and one in light clothing. The defendant’s shoes were muddy and there were splatterings of mud on his lower trouser legs. The terrain in the vicinity of the schoolhouse was muddy. The men said they were going fishing and had made a recent comfort stop. The defendant was not in possession of either a fishing license or fishing equipment. It was five o’clock on a winter morning in February. The two men were taken to the Stillwell Grade School where the burglary had occurred and were later lodged in jail.
An examination of the building disclosed that someone had recently entered the building by breaking a north window. A steel screen across an inner corridor in the building had been forced away from the wall. A hole had been broken in a wall beside a steel door. A large pry bar was found in the corridor. Outside the building a sledgehammer and flashlight were found 100 yards northwest of the schoolhouse. A pry bar, two punches, hammer, pliers and the walkie-talkie were found in defendant’s car.
The defendant was tried and convicted of second degree burglary.
On appeal to this court he specifies various errors as grounds for reversal. We will examine these in the order they are set out in his brief.
The defendant contends the trial court erred in refusing to grant him a continuance in order that he might employ an expert witness to examine and evaluate the state’s fingerprint evidence. The state’s evidence on this point concerned a fingerprint, which matched one of the defendant’s, found on a flashlight battery. The flashlight was the one found in the open field about 100 yards northwest of the school building.
A special examiner for the Kansas Bureau of Investigation, Mr. Buchanan, made the comparison and identification.
Six days before the trial date defendant had requested and was granted permission to examine the fingerprint evidence. The record shows six separate continuances were requested and granted to defendant during a period of one month preceding the trial. The order about which defendant now complains was made in response to his seventh motion for continuance. The motion was made on the day of trial. From the record it appears the defendant’s expert had not yet been employed and had made no examination of the fingerprint evidence. The nature of his testimony was undetermined and speculative.
The granting or denial of a continuance in a criminal prosecution is largely within the discretion of the trial court, and its ruling will not be disturbed in the absence of a showing that such discretion has been abused to the extent that substantial rights of the defendant have been prejudiced. (See State v. Dickson, 198 Kan. 219, 424 P. 2d 274 and State v. Milum, 202 Kan. 196, 447 P. 2d 801.)
No showing has been made the trial court .abused its discretion and it does not appear substantial rights of the defendant were prejudiced by the denial.
The second point raised is that the trial court erred in not granting defendant’s request for funds to employ an expert to examine the fingerprint evidence.
The defendant is not claiming suppression of evidence obtained by the prosecution. Full opportunity to examine and evaluate the state’s fingerprint evidence was granted. The present motion was made to obtain funds to hire a second fingerprint expert.
Our statutes provide for appointment of counsel for an indigent (K. S. A. 62-1304), provide for compulsory process to secure the attendance of witnesses from any county (K. S. A. 62-1308 and 1309), make it unnecessary to tender witness fees in advance (K. S. A. 62-1312), authorize the defendant to obtain testimony from witnesses outside the state (K. S. A. 62-1313) and authorize a record of the trial proceedings for an indigent without cost. (K. S. A. 62-1304 (b).
We have no statute to authorize and provide the supporting services of an expert to an indigent defendant in a criminal case.
Provision for supporting services to assist counsel for an indigent in making an adequate defense to criminal charges has been provided by statute in some states. (Fla. Stat. ann. § 932.30; Ill. Rev. Stat. c 38 § 113-3 (e); N. Y. Code Crim. Proc. § 308; Pa. Stat. anno, tit. 19 § 784.)
In the absence of statute the duty to provide such may arise and be exercised because of an inherent authority in courts to provide a fair and impartial trial as guaranteed by Section ten of the Kansas Bill of Rights and the due process clause of the United States constitution. (See Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891,76 S. Ct. 585.)
The legislature of this state has not been seen fit to enact a statute. The subject of providing funds for supporting services to counsel for indigents suggests a broad vista of incautious dicta beyond the requirements of this particular case. In the absence of statute a request for supporting services must depend upon the facts and circumstances of each case. Therefore it must rest in the sound discretion of the trial court. (See State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981; State v. Greenwood, 197 Kan. 676, 680, 421 P. 2d 24; State v. Zimmer, 198 Kan. 479, 484, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298.)
Defendant’s motion in the present case was made after five continuances had been requested and granted over a period of thirty days preceding the trial date. From the record before us this additional request appears to have been made more to delay the trial than to provide available testimony for the defense. There is nothing in the record to indicate the testimony of a second fingerprint expert would be helpful to the defendant. At the trial the state’s expert was subjected to vigorous cross-examination which disclosed nothing to detract from his qualifications, method of identification or the final opinion given. There simply was nothing shown to suggest the services of an additional expert would be helpful. Mere hope or desire to discover some shred of evidence when not coupled with a showing the same is reasonably available and necessary for a proper defense does not support a claim of prejudicial error.
The granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that such discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced. (State v. Freeman, supra; State v. Greenwood, supra, State v. Zimmer, supra.)
No showing of abuse of discretion appears in this record.
Defendant next contends the trial court erred in not providing a different lawyer on the day set for trial.
This contention is based upon defendant’s personal request which appears in the record. To support this request defendant stated his trial counsel had suggested at one time he should plead guilty. As an innuendo defendant said he needed to take care of business in Missouri instead of proceeding with trial. His appointed counsel denied he had requested a plea of guilty.
The trial court stated:
“Well, there has been one attorney withdraw from this case already, and the court appointed an attorney for you, and apparently the attorney is doing a good job for you. The court is going to deny the motion.”
The record establishes throughout the proceedings counsel diligently and faithfully performed his duties. The accusation is not supported by any suggestion of professional incompetency. Under such circumstances this claim of error is irresponsible, unwarranted and must be disregarded as frivolous. (State v. Calhoun, 194 Kan. 378, 399 P. 2d 886.)
The defendant says the court erred in admitting into evidence the walkie-talkie and the tools taken from defendant’s car without a search warrant.
The facts and circumstances surrounding this arrest as previously set out indicate the search was an incident to a lawful arrest made upon probable cause under the guidelines of State v. Brown, 198 Kan. 473, 426 P. 2d 129 and cases cited therein. These exhibits were properly before the jury.
The defendant argues it was error to admit an authenticated copy of a prior conviction.
The defendant had previously been convicted of burglary and larceny from a school building. An authenticated copy of the conviction was introduced during the state’s case in chief. It was admitted by the court under K. S. A. 60-455 to prove certain material facts including defendant’s plan of operation. The court admitted the same for the purposes approved by the statute and gave a limiting instruction that the jury should not consider this exhibit for the purpose of establishing the commission of the crime for which defendant was presently charged. The defendant had filed a notice of alibi and the matter of identity of the person committing the offense was thereby an issue' in the case. (See State v. Wright, 194 Kan. 271, 275, 398 P. 2d 339.)
The prior conviction was admitted in the state’s case in chief and was proper under the guidelines recently set forth in State v. Roth, 200 Kan. 677, 438 P. 2d 58.
Defendant contends the trial court erred in failing to instruct on third degree burglary.
K. S. A. 21-520 provides:
“Every person who shall be convicted of breaking and entering in the nighttime . . . any shop ... or other building, . . . shall on conviction be adjudged guilty of burglary in the second degree: Provided, That if the evidence produced at any trial of any person charged hereunder, shall in the opinion of the jury ... be insufficient to prove that the alleged crime was committeed in the nighttime, the jury . . . may find the defendant guilty of burglary in the third degree. . . .”
The defendant was charged in the information with burglary “in the nighttime.” The record discloses ample evidence that the burglary was committed in the nighttime. The jury found defendant guilty as charged.
Under K. S. A. 21-520 a defendant charged with burglary in the nighttime may be found guilty of burglary in the daytime if evidence of commission in the nighttime is insufficient. The evidence was not insufficient in this case.
The state’s witnesses testified that the burglars were flushed from the building and arrested shortly thereafter in the early morning hours when it was dark outside. There was testimony that this occurred before 5 o’clock a. m. on February 5, 1967. There was no evidence to dispute the time of commission. Defendant’s theory of defense was alibi, he was going fishing at the time the burglarly occurred.
Failure to instruct the jury on burglary “in the daytime” was not error for the evidence at the trial excluded any theory of guilt in the daytime. (See State v. Hoy, 199 Kan. 340, 343, 430 P. 2d 275 and cases cited therein.)
Defendant claims prejudicial error because certain exhibits were not available to the jury on request.
Two enlarged photographs of the fingerprints, previously discussed herein, were used by a witness and admitted in evidence as exhibit 22. At the close of his testimony the witness returned to Topeka and took the photographs with him by mistake. The jury after some deliberation requested permission to examine the photographs in the jury room. On learning what had happened the court sent for the exhibit. However, the jury continued their deliberations and reached a verdict before the photographs were returned.
Defendant fails to point out how his substantial rights were prejudiced thereby. The exhibit was introduced on behalf of the prosecution and supported the state’s case. It was not favorable to the defendant.
The trial court should disregard any error or defect in the trial which does not affect the substantial rights of the defendant (K. S. A. 60-261) and this court should likewise disregard technical errors or defects which do not affect his substantial rights (K. S. A. 62-1718).
We have reviewed the record carefully and find adequate evidence to support the verdict and judgment. No error is found. The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by the state from an order of the trial court dismissing a case in which appellee-defendant, L. E. Carter, was charged with driving a motor vehicle while under the influence of intoxicating liquor under the provisions of K. S. A. 8-530.
The question presented requires an interpretation of the terms “physician” or ‘“qualified medical technician,” as used in K. S. A. 8-1003 which reads:
“Only a physician or qualified medical technician acting at the request of the arresting officer can withdraw blood of any person submitting to a chemical test under this act.”
Following his arrest, the defendant, with his consent, was taken by a Kansas Highway Patrol Trooper to the Sedgwick County Hospital. Dr. Edgardo Advincula, at the request of the trooper, withdrew blood from defendant for the purpose of performing a test to determine alcoholic content. When the results of the test were offered in evidence at the trial defendant objected on the sole ground that Dr. Advincula was not a “physician” or “qualified medical technician” within the meaning of 8-1003, and that the results of the test were not admissible into evidence to show the alcoholic content of defendant’s blood. There was no contention that procedure in extracting the blood was incorrect. The objection was sustained by the trial court.
After the state rested its case defendant’s counsel moved the court to dismiss because the results of the blood test were not admitted, and none of the witnesses called by the state submitted his opinion as to whether or not defendant was under the influence of intoxicating liquor; and further the state submitted no evidence of any sobriety test tending to show intoxication of defendant. Defendant’s motion was sustained and the case dismissed.
On appeal the state contends the trial court erred in ruling that Dr. Advincula was not a “physician” or “qualified medical technician” within the meaning of those terms as used in 8-1003.
Dr. Advincula testified that he was a medical doctor; that he had received a degree in medicine from Santa Domas University in the Philippines in March 1963. He further testified that after receiving his medical degree he successfully completed an examination given by the Educational Council for Foreign Medical Graduates, which qualified him to come to the United States for further training; that he entered training at the Perth Amboy General Hospital in Perth Amboy, New Jersey, as an intern in medicine. After completing his internship he accepted a residency specializing in internal medicine at St. Francis Hospital in Wichita, and that he was presently in the second year of that residency. He further testified that in connection with his residency at St. Francis Hospital he was working on a rotation or assignment system at the Sedgwick County Hospital in Wichita; and that while on duty at the Sedgwick County Hospital, in the early morning hours of December 31, 1966, he extracted blood from the defendant, at the request of a trooper, for the purpose of administering a blood alcohol test. He also testified that he performed such services as delivering babies and working in the emergency room; and that he had on various occasions withdrawn blood from individuals, brought to the Sedgwick County Hospital by police officers, for the purpose of performing a blood alcoholic test.
Upon cross-examination Dr. Advincula testified that he was not licensed to practice medicine in the State of Kansas and that he had not taken any examination or gone through procedure of any type to become admitted to the practice of medicine in this state. He further testified that he was not a medical technician, but rather he was a medical resident in training.
The state took exception to the trial court’s ruling and argues on appeal that Dr. Advincula, as a second year medical resident in internal medicine, is either a “physician” or “qualified medical technician,” or both, insofar as 8-1003 is concerned.
Wé agree with the position taken by the state.
Defendant’s argument to the trial court was that since Dr. Advincula testified he was not a medical technician, but rather a resident in training, he could not be considered as a ‘“qualified medical technician” within the meaning of the statute. We believe that Dr. Advincula was merely classifying his status in medicine as a resident in training as distinguished from a medical technician, rather than saying he was not qualified to extract blood as a medical technician.
Although the legislature chose the title “qualified medical technician” in specifying those persons authorized to withdraw blood under 8-1003, we find no statutory or case law definition of that title in this jurisdiction and none is cited to us.
In Vol. 1, Dictionary of Occupational Titles, Second Edition, (1949) Definitions of Titles, page 838, prepared and published by the United States Employment Service, a medical technician is defined as one who performs medical duties in a hospital or medical laboratory making various laboratory tests. Certainly, the possessor of a doctor of medicine degree, with the training and experience testified to by Dr. Advincula, must be classified within the purview of “qualified medical technician” as set out in 8-1003.
In enacting 8-1003 the legislature chose not to preface the term “physician” with the word ‘licensed” as was done in other laws of this state. For example see K. S. A. 72-5384, K. S. A. 72-5381(a), now K. S. A. 1968 Supp. 72-5381(a), and K.S.A. 72-5385. In the statutes referred to the intention that a “physician” be “licensed” is unequivocally expressed.
As used in the Uniform Narcotic Drug Act, K. S. A. 65-2501, the term “physician” is defined as meaning any person authorized by law to treat sick and injured human beings in this state.
Practice of medicine by a person while serving an internship or residency in an accredited hospital is recognized and such a person is excluded from the application of the healing arts act in K. S. A. 65-2872(d) the effect of which exempts an intern or resident serving in an accredited hospital from the licensing requirements of the act.
In his argument to the trial court, defendant’s counsel relied upon K. S. A. 72-5384(c) (dealing with certification of health of school personnel), wherein a physician is defined as a person licensed to practice medicine or surgery in the state of Kansas. The argument is not persuasive since the definitions set out in 72-5384 are qualified by the prefatory limitation “as used in this act.”
A perusal of Kansas statutes indicates that where the legislature intended to impose a restriction in its use of the term “physician,” it expressed its intention in a precise and unequivocal manner by the insertion, as a preface, the term “licensed” or imposed the qualification “authorized by law” as in 65-2501. It appears the legislature did not intend to impose any restriction by its use of the unqualified term “physician” in 8-1003, or it would have expressed its intent in the unequivocal language used in other statutes. To assume that the legislature intended such a restriction, but merely failed to include the proper language, is an assumption we think untenable.
A question, almost identical, was presented in People v. Stanton, 228 N. Y. S. 2d 858, where the extraction of blood from a defendant was performed by an intern. Section 1194, subdivision 3, par. a of Vehicle and Traffic Law of the State of New York (amended in 1968), provides: “No person except a physician . . . shall be entitled to withdraw blood for the purpose of determining the alcoholic content therein.” In holding an intern to be a “physician” as the term is used in the statute referred to, the court noted that the New York legislature had used the restrictive terms “duly licensed” or “licensed physician” in other New York statutes, but chose not to do so in the statute referred to. The court stated it was thus quite clear that the legislature was aware of the distinction and difference between the term “physician” and the term “duly licensed physician.”
The New York holding appears to be in accord with prevailing authorities. In 70 C. J. S., Physicians and Surgeons, § 1, we find:
“An intern is a physician; he is a graduate of a medical school with a doctor’s degree, although, it may be, not licensed to practice his profession in the ordinary way by so holding himself out to the public. . . .” (p. 807.)
The language quoted above was used by the court in defining the term intern with respect to the application of the privileged communications rule in Eureka-Maryland Assur. Co. v. Gray, 121 F. 2d 104.
From his testimony we conclude that Dr. Advincula meets the requirements of both a “physician” and “qualified medical technician” as those terms are used in K. S. A. 8-1003.
The appeal is sustained. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from an award of compensation entered in favor of the claimant, Robert G. Hunter, in the District Court of Wyandotte County, Kansas.
On November 10, 1967, the workmen’s compensation examiner entered an award in favor of the claimant based on a 50% permanent partial loss of use of his right arm, or $42 per week for a period of 105 weeks. The compensation then due and owing, in the sum of $3,360, was ordered paid forthwith and the balance ordered paid at $42 per week. This award was approved by the director on November 24, 1967. Four days later, on November 28, 1967, the claimant filed notice of appeal from the director’s award. On the same date, the claimant’s counsel addressed and mailed the following letter to the respondent’s lawyer:
“Mr. Paul Scott Kelly
Attorney at Law
831 Scarritt Building
Kansas City, Kansas
In re: Robert Hunter vs. General Motors Corp.
Docket No. 55,278
Dear Sir:
More than ten days have elapsed since an award was entered by the Examiner, Simeon Webb, and said order has now been adopted by and has become the Order of the Workmen’s Compensation Director. We therefore hereby make a demand for the payments due and owing under this award up to the present time.
Very truly yours,
/s/ Samuel J. Wells”
No reply was made to this demand until December 21,1967, when the following letter was dispatched by Mr. Kelly to Mr. Wells:
“Dear Mr. Wells:
Pursuant to your demand of November 28, 1967, we submit herewith GM Assembly Division check C83202 in the amount of $4,410.00 in full payment and satisfaction of compensation benefits due the claimant under the award of Simeon Webb, Examiner, dated November 10, 1967, which award was approved by the Workmens Compensation Director on November 12, (sic) 1967.
Also enclosed are the original and two copies of a receipt for the payment of this compensation which we would appreciate your having executed and returned to us.
Very truly yours,”
Following the receipt of this letter, Mr. Wells called Mr. Kelly and asked him to take the check back and give him a check for the correct amount, but Kelly said they couldn’t do that. On December 29, 1967, the claimant filed a motion praying for an order allowing him to pay the check into court, lest his acceptance of the money render his appeal moot and deprive him of his right of appeal, and asking for a further order directing the clerk of the court to pay from the deposit the amount normally due under the director’s award and to hold the remainder until further order. In the alternative, the claimant asked for a finding that should he negotiate the check it would not constitute acquiescence in a full and complete settlement for $4,410.
On January 3, 1968, the respondent, General Motors Corporation, which in the meantime had also appealed from the director’s award, filed a motion to dismiss the claimant’s appeal on the ground that he had acquiesced in the director’s award. On January 11, 1968, a hearing was held on the claimant’s appeal and on the respondent’s cross-appeal, and on February 13, 1968, the district court found that the claimant had sustained a general permanent bodily disability of 25% and entered an award of compensation in claimant’s favor for 415 weeks at the rate of $21.97 per week for a total sum of $9,117.55. At this time the court overruled the General Motors’ motion to dismiss the claimant’s appeal.
The trial court also found that “the tendered payment by the respondent was not in response to any proper demand and was paid voluntarily,” and thereupon ordered “that this check in the amount of $4410 shall be applied on the above award.” Further findings were made that claimant did not acquiesce in the original award; that the check was never negotiated; and that claimant had moved to have the check paid into court which showed “his intention not to acquiesce in the award.” On February 15, 1968, two days after the district court award was made, the $4,410 check was negotiated by the claimant, and its proceeds retained by him.
The respondent prosecutes this appeal primarily on the theory that the claimant had acquiesced in the director s award and was thereby precluded from maintaining an appeal to district court. Acquiescence on claimant’s part is shown, according to the respondent’s argument, first by the dispatch of the letter of November 28, demanding the payments due and payable under the director’s award up to that date; second, by claimant’s failure to return the $4,410 check sent to Mr. Wells in response to claimant’s demand; and third by claimant’s negotiation of the $4,410 check after the district court had entered its award.
To support his thesis, the respondent contends that the claimant’s demand of November 28 was made pursuant to K. S. A. 44-512a, and was inconsistent with his action in filing an appeal from the award on the same date. K. S. A. 44-512a provides in substance that if compensation awarded a workman is not paid when due and if demand therefore is served personally or by registered mail on the person, firm, or corporation liable for its payment and on his or its attorney of record, a refusal to make the payment demanded within twenty days after service thereof shall make the entire award immediately due and payable, and that an action thereon can be maintained as for collection of a debt.
On the other hand, the claimant maintains that his demand was made, not under 44-512a, but pursuant to K. S. A. 1967 Supp. 44-556, the appeal statute. This statute substantially provides, so far as this lawsuit is concerned, that an appeal may be taken from an award of the director by filing a notice of appeal with the director within twenty days after the award has been made and filed, and that no compensation shall be due or payable until the expiration of such twenty-day appeal period.
It cannot truthfully be said that the letter penned by Mr. Wells on behalf of his client is entirely unambiguous. It does not fully comply with 44-512a since it was not served on the respondent’s counsel, either in person or by registered mail, nor was it served on the respondent at all. Neither was the demand appropriate or effective under 44-556, inasmuch as it was made within the twenty-day period during which, by virtue of the statute, compensation was not due or payable. What may have prompted claimant’s counsel to formulate such an untimely and ill-conceived demand is utterly beyond our ken.
But we are not required to determine which, if either, statute the ill-designed demand most nearly fits. The trial court found that the respondent’s check was not tendered pursuant to any proper demand, but was paid voluntarily. In the face of this record we are forced to conclude this finding was correct. Speculation as to what might have been the result of an effective demand under 44-512a would, accordingly, be only an exercise in futility.
The respondent argues that claimant’s demand clearly was not made under 44-556 because, under that statute, it would have been premature, twenty days not having elapsed from the date of the director’s award. While we agree that demand would be premature under K. S. A. 1967 Supp. 44-556, it would be equally premature under K. S. A. 44-512a. No payments of compensation were due and payable on November 28, 1967, when Wells sent his ill-fated letter, and the demand contained therein was ineffectual under either statute.
We find considerable analogy between the situation which confronts us here and the circumstances which were present and considered by us in Harper v. Coffey Grain Co., 192 Kan. 462, 388 P. 2d 607, and Cramer v. Blankenship Painting & Decorating Co., 197 Kan. 360, 416 P. 2d 255. The gist of those decisions, so far as the instant question is concerned, is that a demand made under 44-512a is premature and ineffectual if it be made within the ten-day period during which a review of the examiner’s award may be requested or, where a review is requested, if the demand is made prior to the director’s determination of such review.
Although in the present action the director had made a determination of the review and his decision had been filed, the claimant’s demand was made within the twenty-day period in which an appeal could be taken to district court and during which, by the terms of the statute (44-556), no compensation was due or payable. Under these conditions, the 44-512a demand was, as we said in Harper, “premature and ineffectual to authorize an action for a lump sum judgment.” (p. 469.)
The respondent next contends that the claimant’s retention of the $4,410 check constituted acquiescence in the award. The district court, however, found to the contrary, and we believe its determination is well supported. Upon receiving the check, claimant’s counsel offered to return the same, provided the respondent would “give us a check for the correct amount.” (The evidence showed that approximately $3,360 had accrued on the director’s award at that time.) When Mr. Kelly declined counsel’s offer, the respondent’s check was not cashed, but a motion was filed asking that the check be ordered into court; that the clerk pay claimant therefrom the amount which had accumulated on the director’s award; and that the balance be held for further order.
These facts were said by the trial court to evidence an intent not to acquiesce, and we are constrained to agree in this conclusion. The finding of the Rial court, being supported by substantial evidence, will not be disturbed on appeal. (Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P. 2d 467.)
It is argued that claimant’s acquiescence in the award of the director is established by his negotiation of the General Motors’ check after the district court had entered its judgment. This argument is entirely lacking in merit. An appeal from an award of the director is heard in the district court as a trial de novo on the transcript of the proceedings had before the director. In Landes v. Smith, 189 Kan. 229, 368 P. 2d 302, we said:
“The district court on appeal considers the matter de novo upon the record taken by the Commissioner, it weighs the evidence and is required to consider the case as if it were one of first impression;” (p. 232.)
See, also, Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402; Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P. 2d 41.
On appeal from the director’s award pursuant to K. S. A. 1965 Supp. 44-556, the district court has jurisdiction to grant or refuse compensation or to increase or diminish any award made by the director. Whatever award is made by the district court on appeal is a judgment. In Teague v. George, 188 Kan. 809, 365 P. 2d 1087, this court said:
“[The district] court considers and passes upon both the law and the facts and makes its findings and conclusions and renders a judgment.” (p. 812.)
When the district court entered its judgment awarding compensation in this case, the force and validity of the director’s award was spent. Thereafter there was no director’s award in which the claimant could acquiesce; that award had been superceded by the judgment of the district court.
We conclude that the claimant was not precluded from prosecuting an appeal from the director’s order because of acquiescence. Nor do we agree that the appeal became moot, as the respondent contends, either on the ground of acquiescence or on the ground of a settlement between the parties. Ill-phrased though it was, the claimant’s demand was not for the full amount of the director’s award but only for so much as was, at the time, due and payable. We may assume, from what is shown in the briefs and record, that the amount “due and payable” to which the demand referred was the $3,360 which had accrued on the director’s award. Under such circumstances, the response of General Motors in sending a check for $4,410 (being the entire amount of the award), may not be construed as a satisfaction of the demand or as constituting a settlement binding on the claimant. Especially is this true in view of claimant’s offer to exchange the check for one of proper amount and his subsequent tender into court.
Further time need not be spent on the issues of acquiescence or mootness. The respondent’s final claim of error is simply this: that the district court had no authority to order the $4,410 check applied in its entirety to the payment of claimant’s award when less than that amount had accrued thereon.
In connection with this contention, the claimant freely admits that the check was cashed on February 15 and all its proceeds were retained. It was further conceded upon oral argument that the proceeds of the check, $4,410 in all, was not only more than sufficient to pay all installments due at the time of the district court’s award, but that the amount was sufficient to cover all of the payments accrued to September 24, 1968, when the case was argued, and for a considerable length of time thereafter.
The court’s action is somewhat ambiguous, merely ordering that “this check in the amount of $4410 shall be applied on the above award.” If the court thereby intended, only, that so much of the check be applied to the award as would satisfy the payments of compensation already accrued (which the respondent has computed as amounting to $2,065.81 on February 13, 1968) we believe the order lay fairly within the court’s inherent power. But the same cannot be said if the order'contemplated that the proceeds of the check be applied, also, to payments not yet due the claimant, and such is the interpretation claimant has given the order by his negotiation of the check and his retention of its entire proceeds.
This court has often held that the Workmen’s Compensation Act is complete within itself and provides its own procedures. (Russell v. Lamoreaux Homes, Inc., 198 Kan. 447, 424 P. 2d 561.) The practical effect of the district court’s order as it has been interpreted by claimant, and as we now must view it, was to accelerate the payment of a substantial part of the award which on February 13, 1968, was neither due nor payable. We can find no provisions within the Act for the acceleration of prospective compensation payments in such an informal, if not high handed, manner.
The district court does not occupy the status of a paymaster. Procedures for the enforcement of compensation due are set out within the Act. In Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001, we said:
“The workmen s compensation act establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself. (Citing cases.)” (Emphasis added.) (p.247.)
Moreover we have held that the district court’s award of compensation is a judgment which may be enforced by execution. (Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853; Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73.)
We hold that so much of the order of the district court as would apply tire respondent’s check to the payment of installments of compensation coming due in the future was beyond the court’s jurisdiction to make and that it was entered erroneously and must be set aside.
There remains the sticky problem of what form our judgment is to take in this regard. The claimant takes the position that he cannot be compelled to make restitution of any amount he may have appropriated to himself under the court’s void order, citing Tompkins v. Rinner Construction Co., supra. Assuming, without deciding, that our decision in Tompkins precludes us from directing the trial court to compel restitution of any part of the proceeds obtained from the General Motors’ check, the respondent is not wholly bereft of remedy.
In its brief, the respondent submits that the compensation awarded by the court should be adjudged to be fully paid up until the total weekly compensation due under the court’s, judgment totals the sum of $4,410. We believe the respondent is entitled to such relief, as being both appropriate and just, and that the judgment of the district court entered on February 13, 1968, should be modified in such respect.
Modification of the award in this regard will relieve the respondent from the harassment to which it has been subjected through the medium of legal proceedings initiated after judgment was entered. Despite the fact that the check cashed by the claimant was more than ample to pay all installments of compensation falling due from February 13 to the date of this opinion, the claimant has persisted in attempts to collect even more. To this end he has instituted both contempt and garnishment proceedings, in addition to making a written demand for payment specifically tied, in this instance, to K. S. A. 44-512a. The institution of these proceedings can be characterized only as vexatious in nature, reflecting no credit on either the claimant or his counsel. Members of the legal profession, especially, should eschew conduct of this character. The obnoxious proceedings should be terminated at once.
That part of the judgment of the court below which awards compensation to the claimant is affirmed and this cause is remanded with directions to the trial court to modify the remainder of its judgment in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by petitioner, David O. Holt, from an order of the district court denying relief in a proceeding instituted pursuant to K. S. A. 60-1507. Petitioner was charged, tried and convicted of the crimes of statutory rape (K. S. A. 21-424) and incest (K. S. A. 21-906) in April 1965. The convictions and sentences were affirmed by this court in State v. Holt, 197 Kan. 468, 419 P. 2d 834, for the reason defendant there (petitioner here) had failed to appeal from the order of the trial court overruling his motion for a new trial. Since the specifications of error related only to trial errors there was nothing before this court for review. The long-standing rule which determined the holding has since been abrogated by this court as to subsequent appeals in criminal proceedings by the adoption, on June 27, 1968, of Rule No. 17 (Rules of the Supreme Court, 201 Kan. xxvn) pertaining to Appellate Practice before this court.
This appeal involves proceedings instituted in January 1968 by petitioner while confined in the Kansas State Penitentiary. Petitioner appeared by his counsel and the state by the assistant county attorney at the hearing before the trial court. The personal presence of petitioner was found to be unnecessary by the trial court, and the issues were resolved from the record of the jury trial and the arguments of respective counsel. Essentially, the basis of the trial court’s ruling was that petitioner sought only a review of trial errors in his motion.
On appeal petitioner makes two principal contentions.
First, petitioner insists that his constitutional rights under the Fifth, Sixth and Fourteenth Amendents to the Constitution of the United States were violated by the trial court’s admission of an oral confession obtained from him under circumstances hereafter related.
Second, petitioner contends that he was denied due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States when the trial court permitted the assistant county attorney to participate in the prosecution, after he had testified concerning events surrounding petitioner’s oral confession at a hearing in chambers. He later appeared as a rebuttal witness for the state.
Petitioner’s first contention arises from circumstances surrounding his alleged confession following his submission to a polygraph test. The trial court in conformity with State v. Seward, 163 Kan. 136, 181 P. 2d 478, convened an in chambers hearing to consider the voluntariness of the confession. A complete transcript of the in chambers hearing is included in the record. There is no conflict in the evidence as to the circumstances surrounding the taking of petitioner’s confession. The evidence consists of the testimony of Donald Allegrucci, the assistant county attorney, and that of Wendell Cowan, a special agent for the Kansas Bureau of Investigation.
According to Allegrucci, he and, petitioner’s retained counsel, Walter McGinnis agreed to terms under which petitioner would take a polygraph or “lie detector test.” In substance the agreement was that if petitioner “passed” the polygraph test charges against him would be dismissed and if he “failed” a plea of guilty would be entered.
Pursuant to this agreement petitioner appeared in the county attorney’s office on the afternoon of November 13, 1964. Petitioner was escorted to a nearby room by agent Cowan for a “psychological preparation,” prior to the administration of the polygraph examination. The preparation and examination extended over a period of about two hours. After the examination was completed, Cowan took petitioner back to the county attorney’s office for the purpose, as Cowan testified, “to turn him over to somebody.” Cowan had told petitioner at the conclusion of the examination to “tell the County Attorney the truth.” When Cowan and petitioner returned to the office of the assistant county attorney, Allegrucci, Cowan announced that petitioner had something to say.
The scene was described by Allegrucci who testified as follows:
“A. After he came into my office? Yes. He came in, Mr. Cowan and the defendant Mr. Holt came into my office. After they came in Mr. Holt took a chair directly in front of my desk. Mr. Cowan made the statement to me, I can’t quote verbatim but it was something to the effect that 1 believe Mr. Allegrucci that Mr. Holt has something to say to you.’ Mr. Cowan then sat down. I have a row of chairs on the right hand side facing the wall. Mr. Cowan took the second seat along the wall, Mr. Holt sat in front of me. I looked at Mr. Holt and he looked, I can’t say it seemed like a long time passed. I would guess fifteen or twenty minutes finally Mr. Holt said (testimony interrupted by an objection)
“A (continuing) Mr. Holt looked at me and he said ‘I did it.’ I looked at him and I said ‘You did what?’ And there was another pause and he repeated ‘I did it.’ ”
Allegrucci then asked petitioner a series of questions, the answers to which amounted to a confession by petitioner which was testified to at the trial by Cowan and Allegrucci.
It is conceded that prior to this interrogation petitioner did not receive any warning as to the effect of his statements by either Allegrucci or Cowan. Allegrucci made no effort to notify petitioner’s attorney that petitioner was in his office and apparently desirous of making a statement or confession. Allegrucci further testified that he did not know whether McGinnis knew his client was present for the purpose of making an oral confession. Allegrucci saw no need to call McGinnis because petitioner was present with the consent of McGinnis.
After the interrogation by Allegrucci petitioner was permitted to leave, and he was advised by Allegrucci to go across the street to his attorney’s office and tell him what he had said in response to his (Allegrucci’s) interrogation.
Following the polygraph test and interrogation of petitioner, on November 13, 1964, a preliminary hearing was had and petitioner was bound over for trial. The trial in district court was set for April 1965. In the meantime petitioner’s retained counsel determined that a conflict of interest on his part might arise if he were to continue to defend petitioner, since his son was acting county attorney at the time charges were filed against petitioner. As a result, Mr. McGinnis withdraw as petitioner’s counsel and Richard Moss was appointed to defend petitioner in district court.
At the trial petitioner’s counsel (Moss) vigorously objected to the admission of petitioner’s confession. At the conclusion of the in chambers hearing, the trial court ruled that the interrogation of petitioner by Allegrucci was not a part of the polygraph examination and that the answers given by petitioner were voluntary and admissible through the testimony of Cowan.
The court’s concern that petitioner’s answers must not be a part of the polygraph test was justifiable. Evidence of the results of a lie detector test is inadmissible. (State v. Emory, 190 Kan. 406, 375 P. 2d 585, and State v. Lowry, 163 Kan. 622, 185 P. 2d 147.) The real issue here, however, is not whether the polygraph test had been entirely completed but whether the circumstances surrounding the following interrogation, resulting in petitioner’s confession, met the constitutional requirements of voluntariness.
The trial proceeded and Cowan testified as to statements made by petitioner to Allegrucci. Petitioner’s counsel renewed his objections.
Following petitioner’s evidence Allegrucci, at the insistence of the trial court, withdrew as prosecuting counsel and took the stand as a rebuttal witness for the state. Allegrucci corroborated the testimony of Cowan as to the statements made by petitioner in the county attorney’s office following the polygraph test.
Before proceeding with points raised by petitioner, we pause to consider the state’s contention that the question raised by petitioner is not reviewable in these proceedings because it involves a trial error only reviewable by direct appeal. (King v. State, 200 Kan. 461, 436 P. 2d 855.) As a proposition dealing with trial errors, under ordinary circumstances, the state’s position is correct and in accord with Rule No. 121 (c) (3) (Rules of the Supreme Court, 201 Kan. _). We have held repeatedly that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal. (Jolly v. State, 200 Kan. 202, 434 P. 2d 547 and King v. State, supra.) However, Rule No. 121 (c) (3) further provides:
“. . . 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.”
In the instant case the trial error claimed, concerning the admission of petitioner’s confession, affected his constitutional rights and we believe the conditions existing fall within the exceptional circumstances contemplated in Rule No. 121 (c) (3).
With respect to petitioner’s second point on appeal, this court has condemned as bad practice the participation by an attorney in the trial of a case, either criminal or civil, when he is called as a witness. (Protheroe v. Davies, 149 Kan. 720, 89 P. 2d 890, and State v. Ryan, 137 Kan. 733, 22 P. 2d 418.) The error claimed is not reviewable under our Rule No. 121 and further comment is not required.
We turn then to the merits of the question posed by petitioner’s first point. Petitioner concedes the mandate of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, with respect to the constitutional requirements for admission of a confession in a criminal action is not applicable since the trial in this case occurred prior to the announcement of that decision. Miranda has only prospective application. (State v. Weinman, 201 Kan. 190, 440 P. 2d 575, and Hensley v. State, 199 Kan. 728, 433 P. 2d 344.) Petitioner argues that even though the rules set forth in Miranda are not applicable his confession was secured by unconstitutional means. He points out that the state has failed to allege or prove that he was advised of his right to remain silent or warned that what he said might be used against him, or informed that he was entitled to the presence of his counsel. He further asserts that the state does not allege or prove that any of such rights were affirmatively waived. Petitioner cites Clewis v. Texas, 386 U. S. 707, 18 L. Ed. 2d 423, 87 S. Ct. 1338; Davis v. North Carolina, 384 U. S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761; Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and Carnley v. Cochran, 369 U. S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884.
We shall first consider what this court has had to say concerning the subject. Long before the declarations in Escobedo and Miranda this court said in State v. Seward, supra:
“A confession is inadmissible unless accused was advised of his rights under the law and it is shown the confession was made voluntarily. . . .” (p. 144.)
In that case the burden of proof was declared to be upon the state to show that the confession offered was the voluntary act of the accused. It was further held that the question as to whether a confession had been voluntarily made should first be determined by the court in the absence of the jury and, if found to be voluntarily made and admissible, it could then be submitted to the jury under proper instructions. Many cases dealing with the subject were reviewed in the recent case of State v. Milow, 199 Kan. 576, 433 P. 2d 538, and the tests to be applied, in determining the admissibility of a confession, were stated as follows:
“Where a person is on trial for a crime, evidence of a confession of guilt of the crime previously made by such person is in general not admissible unless it appears that the confession was entirely voluntary. If such confession is made while the party is under arrest or charged with a crime, evidence of the confession is not admissible on the trial unless it is made to clearly appear that the party was fully advised of his rights, and that after being so advised, the confession of guilt was freely and voluntarily made under circumstances that afforded no undue influence in procuring the confession. Furthermore, the burden of proof is upon tire state to show that any confession of a crime by the accused was freely and voluntarily made before the confession is admissible in evidence. . . .” (p. 583.)
Where there is a conflict in the testimony of the defendant and that produced by the state, as to the voluntary character of a confession, it is to be determined like any other question of fact, and while a finding by the trial court is open to review, since it has a much better opportunity to ascertain the truth than that afforded by the reviewing court, its conclusion if supported by substantial competent evidence cannot be disturbed. (State v. Hayes, 106 Kan. 253, 187 Pac. 675.) Where there is a genuine conflict of evidence, great reliance must be placed upon tire finder of fact. (Andrews v. Hand, 190 Kan. 109, 372 P. 2d 559, cert. den. 371 U. S. 880, 9 L. Ed. 2d 117, 83 S. Ct. 152, and Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274.)
In the instant case there are no conflicting claims as to the circumstances surrounding the confession. The testimony of the assistant county attorney (Allegrucci) reveals that when petitioner was confronted, after the polygraph examination, Allegrucci and petitioner sat silently, facing each other across the table for a period of fifteen to twenty minutes. Petitioner finally said “I did it” and Allegrucci immediately commenced interrogation. Relying entirely on the fact that petitioner s counsel had agreed to the polygraph examination, the state candidly admits that even though agent Cowan had announced that petitioner had something to say, no effort was made to contact petitioner’s counsel, whose office was just across the street.
Petitioner, at the time of the trial, was a forty-six-year-old farmer with an eighth grade education. He had never before employed the services of an attorney. Assuming that petitioner had been previously advised of his rights by his retained counsel, we are unable to say that his confession, after a two hour polygraph examination followed by a fifteen to twenty minute silent confrontation with the assistant county attorney, was obtained by constitutional means.
While this court has said a confession is not rendered inadmissible solely because it was made at a time when defendant did not have counsel (State v. Weinman, supra, and Cox v. State, 199 Kan. 797, 433 P. 2d 470, and Powers v. State, 194 Kan. 820, 402 P. 2d 328), it must be made to appear that accused was fully advised of his rights. (State v. Milow, supra, and cases cited therein.)
The most that can be said of the state’s position here is that petitioner’s counsel agreed to a polygraph test and to proceed according to the results thereof. There is no contention that the agreement included submission to the subsequent confrontation and interrogation in the absence of petitioners counsel. Nor is any showing made from which a waiver by petitioner of the presence of his counsel could be inferred. Instead of advice that he was entitled to the presence of his counsel and as to his other rights, petitioner was met with a silent confrontation with the assistant county attorney and agent Cowan. Coercion in obtaining a confession from an accused can be mental as well as physical. (State v. Milow, supra, and Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3rd 1205.)
As pointed out in State v. Milow, supra, the range of inquiry is broad and a trial court must consider the totality of the circumstances in making a determination on the voluntariness of a confession. (See, also, Andrews v. Hand, supra, and Clewis v. Texas, supra.)
On the totality of the circumstances, as shown by the undisputed evidence, as a matter of law petitioners confession did not meet the constitutional standards of voluntariness and its use as evidence against petitioner deprives him of due process of law.
Under the circumstances present, the matter was a proper subject for review in a 60-1507 proceeding. The trial court erred in not granting relief on petitioners motion by vacating and setting aside the judgment and sentence and directing a new trial in which evidence of petitioner’s purported confession is excluded.
The judgment is reversed and the cause remanded to the district court for further proceedings in harmony with this opinion. | [
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The opinion of the court was delivered by
Hatcher, C.:
This controversy steins from an automobile collision at an uncontrolled intersection of two township roads.
The collision, which gave rise to the action, occurred on July 27, 1965, at about 7:25 a. m. The scene of the accident was a rural intersection described as a “gravel township intersection.” There were no traffic signs.
The intersection was a partially blind intersection for cars approaching from the north and east. There is a slight uphill grade from the north and a slight downhill grade from the east. There was a haystack 164 feet east and 16 feet north and there was a trench silo with 18 inch high weeds 11 feet east and 23 feet north of the northeast comer of the intersection. There was an unobstructed view of 51 feet between the haystack and the silo and there was an unobstructed view of 55 feet between the silo and the intersection. The drivers of vehicles would be unable to see each other if either or both were behind the haystack or silo, otherwise the visibility was unobstructed.
Plaintiff was a 35 year old carpenter and farmer living north of the intersection. He was on his way to work when the collision occurred.
There were no eye witnesses to the collision. Plaintiff recalls loading his tools into his truck and driving toward the city of Stafford but remembers nothing else for several days. He was in a state of shock for two days and unconscious for three or four more days. He stated that his usual speed was about 35 miles per hour. The defendant was mentally incompetent and incapable of giving testimony under oath.
The defendant was approaching the intersection from the east while plaintiff approached from the north. An investigating officer for the highway patrol arrived shortly after the accident. His measurements disclosed that the point of impact was fifteen feet west of the east fine and seven feet south of the north line of the intersection.
John Stackley, a reconstruction expert who had been with the City of Wichita Police Department for 35 years and with the traffic department for 22 years, testified for plaintiff.
The witness estimates speed by studying the damage to the vehicles, estimating the force of the impact and studying similar surrounding circumstances. There were no skid marks. He placed the point of impact on plaintiff’s truck thirty-seven inches back from the front bumper. He calculated that the plaintiff was traveling at a speed of 35 to 47 miles per hour, and the defendant was traveling at a speed of 54 to 66 miles per hour. It was also his opinion that the plaintiff’s vehicle was in the intersection a split second ahead of the defendant, perhaps one foot ahead.
The case was tried to a jury which answered special questions as follows:
“1. Question: Do you find that the plaintiff, Chester H. Hildebrand, was guilty of any negligence which was the proximate cause of the accident? If so, state the act or acts of negligence.
“Answer: No.
“2. Question: Do you find the defendant, Otto Kurt Mueller, was guilty of any negligence which was the proximate cause of the accident? If so, state the act or acts of negligence.
“Answer: Yes — Ans.—Failure to yield the right of way to a vehicle already in intersection.
“3. Question: If you find for the plaintiff, how much do you allow for his:
“a. Injuries ........•................................... 5,000.00
“b. Pain and suffering.................................. 5,000.00
“c. Past loss of wages................................... 2,030.00
“d. Future loss of wages ................................ 21,000.00
“e. Damages to his automobile........................... 1,750.00
“f. Past medical bills ................................... 4,836.90”
The trial court directed the entry of judgment on the verdict and findings, and the defendant has appealed.
The appellant first contends that the appellee was guilty of contributory negligence as a matter of law.
In the case of Cole v. Dirkson, 202 Kan. 431, 449 P. 2d 584, we discussed the principles of law which control the extent of this court’s consideration of the facts in an automobile accident case. It would serve no useful purpose to restate them here.
The jury absolved the appellee of contributory negligence. Although the evidence is scanty and weak, we cannot say that reasonable minds might not differ under the circumstances. The jury may well have believed that appellant’s unreasonable speed was the proximate cause. If the appellee entered the intersection one foot ahead of the appellant and traveled only six feet while the appellant was traveling fifteen feet, the appellant must have been going more than twice as fast as the appellee. The jury could well have believed that appellant was traveling at such a rate of speed that he had no time to slow down, swerve or do anything toward yielding to someone in the intersection.
The appellant relies heavily on Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084. In the Green case we stated at page 610 of the opinion:
“Whether a negligent act, or acts, constitute the legal and efficient cause, or a contributing cause of injury, is ordinarily a jury question. Where, how ever, the evidence involved is entirely uncontradicted or the material facts on which a party relies are all admitted a question of law is presented for determination of the court.”
We cannot say that in the case before us the facts are all admitted. Also, the weight to be given the testimony of the expert witness was a question for the jury to determine.
If there was merit in appellant’s next contention, his argument as to the evidence would have merit.
The defendant contends that the testimony of the expert, John Stackley, was erroneously admitted. The chief complaint seems to be that the witness was not qualified to testify as to the speed and location of the automobiles just before entering the intersection. Appellant recognizes that the qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. (Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567.) However, he states:
“• • • Nevertheless, we submit it was an abuse of discretion on the part of the District Court to allow Stackley to testify to the ultimate fact of which vehicle entered the intersection first, particularly when he admitted that at best he was talking about a split second. . . .”
We find no merit in the contention. We must conclude, as we did in Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822, where we held:
“The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge, and unless the judge excludes the testimony he shall be deemed to have made the findings requisite to its admission.” (Syl. 2.)
John Stackley’s qualifications as an expert were approved in McElhaney v. Rouse, 197 Kan. 136, 415 P. 2d 241.
The appellant next contends that the verdict was excessive. Appellant’s chief objection is addressed to the allowance of $21,000 for future loss of wages.
This court has found it impossible to formulate a hard and fast rule on the question of the amount of damages to be allowed in a personal injury action for the simple reason that the determination of the matter necessarily depends upon the facts and circumstances of each particular case. (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321.) We must look to the extent and nature of the injuries.
The appellee suffered severe lacerations on his head, twelve ribs were broken, there was a hernia to the diaphragm, his stomach was forced up into the chest cavity which required an operation to repair and his spleen was ruptured and had to be removed.
The appellee did make a remarkable recovery. He was in the hospital a little over five weeks and returned to work two months after leaving the hospital. However, the testimony was to the effect that he could not do the amount of work he did before the accident. His foreman testified that he found him resting on occasions around three o’clock — something he had not done before. Prior to the accident appellant weighed 260 pounds. He now weighs 190 pounds.
The appellee has a life expectancy of 36 years. His doctor stated that he would have to do less strenuous work than before the accident and gave him a ten percent permanent disability. We cannot agree with appellant’s suggestion that — “There was absolutely no foundation, however, for any future loss of wages.”
We find no reason to take issue with the amount of the jury’s verdict.
The appellant last contends that he was erroneously precluded from any post-trial contact with the jury.
Under the rule of the judicial district where the case was tried, attorneys are prohibited from directly or indirectly contacting a juror. The rule provides that the court may require members of the jury to appear and answer questions propounded by the judge at the request of counsel. Counsel are allowed to propose suggested questions but they are not allowed to question a juror.
The appellant states that he is unable to enumerate the precise nature of any misconduct. It would appear that appellant wanted to go on a fishing expedition without anything definite in mind. The defendant did not attempt to have questions propounded to the jury by the court, the answers to which might indicate misconduct. We think appellant’s objection is premature. Before the appellant can obtain relief for misconduct of the jury he must show that substantial rights have been prejudiced. (Baker v. Western Casualty & Surety Co., 196 Kan. 345, 411 P. 2d 711.)
What has been said should not be construed as approval of the rule. It appears to go much further than the latest decision of the American Ear Association Committee on Professional Ethics would indicate as improper. The latest decision, opinion 319, issued August 26, 1967, reads:
“Where the law governing the procedure for an action allows the testimony of a juror by affidavit or otherwise to be used in support of or against a motion for new trial, it is not unethical for a lawyer after trial to talk to or question members of the jury. In states where it is not illegal, a lawyer may communicate with jurors after the trial for the purpose of self-education. The lawyer must not in either case harass, entice, induce or exert improper influence on the juror.”
A judge no doubt has power to bring post-verdict interrogations under his control by directing that such interrogations shall be under his supervision. There are, however, two conflicting desiderata which must be weighed in determining how far such questioning shall be permitted and in what manner it shall be done. One is the protection of the defendant’s rights to a fair trial before an impartial jury. The other is the danger presented by inquiries that go beyond objective facts, i. e., harassment of jurors, increased incidents of juror tampering and creation of false issues.
Before the rule is criticized by this court we would want to see the effect of its operation in order to determine whether prejudice to the substantial rights of the complaining party resulted.
A careful examination of the record discloses no error which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
Price, C. J. and Fontron, J., dissent from the first subparagraph of paragraph 3 of the Syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
The issue presented by this appeal is whether the manufacturer of a product which is potentially hazardous to health and who gives adequate warning of such potential hazard, by label or otherwise, to its immediate vendee, an industrial user, may be liable in tort to an employee of the vendee for injuries allegedly sustained from such product upon the theory that the manufacturer was negligent in failing to give additional and specific warnings of the product’s potential health hazard to the employee.
The plaintiff in his amended petition alleged that he was employed by the Beech Aircraft Corporation in its jig shop as a jig builder. In the course of his employment he was ordered to spray a compound known as “Dow Corning R-671 Resin” onto jig parts for the purpose of preventing adhesion of organic materials to jig patterns. In a similar manner the plaintiff used a chemical compound known as “Toluol.” The plaintiff claimed that such chemical compounds contained irritants which were dangerous and deleterious to the health of the users thereof, all of which was known to the defendants but unknown to the plaintiff.
The case was submitted to the trial court on the defendants’ motion for summary judgment upon the basis of stipulations and admissions of fact contained in tire amended pretrial order as follows:
“1. The parties agreed to be bound by the following stipulations and admissions of fact:
“a. The court has jurisdiction of the parties and the subject matter.
“b. At all times material the plaintiff was an employee of Beech Aircraft Corporation.
“c. The plaintiff’s work environment at Beech Aircraft Corporation plant was subject to the exclusive control of Beech Aircraft Corporation.
“d. At all times herein material defendant Dow Coming Corporation has been a manufacturer of a product known as Dow Corning R-671 resin and has supplied Beech Aircraft Corporation with that product.
“e. At all times herein material defendant Enmar, Inc., has been a supplier of a product known as Toluene (or Toluol) to Beech Aircraft Corporation.
The plaintiff does not claim that the product known as Dow Corning R-671 resin, which was manufactured by defendant Dow Corning Corporation or the product known as Toluene distributed by defendant Enmar, Inc., were either negligently manufactured or defective in nature.
“g. Defendant Dow Coming Corporation admits that its product, Dow Corning R-671 resin, is potentially hazardous to the health of persons using it in industrial processes if it is used without adequate ventilation and if its vapors are inhaled for long periods of time.
“h. Defendant Enmar, Inc., admits that its product, Toluene, is potentially hazardous to the health of persons using it in industrial processes if it is used without adequate ventilation and if its vapors are inhaled for long periods of time.
“i. During the period September, 1962, to June, 1964, the plaintiff was exposed to the vapors of Toluene and Dow Coming R-671 while working for the Beech Aircraft Corporation.
“j. At all times herein material Beech Aircraft Corporation was aware of the potential health hazards presented by Toluene and Dow Corning R-671 resin when ordering said products from the defendants.
“k. At all times herein material Beech Aircraft Corporation had adequate warning from the labels on the product of Dow Corning of, or through the exercise of reasonable care could have discovered, the potential health hazards that might arise from using said defendant’s product without adequate ventilation or from breathing the vapors of said product over prolonged periods.
“1. At all times herein material Beech Aircraft Corporation had adequate warning from the labels on the product of defendant Enmar, Inc., of the potential health hazards that might arise from using said product without adequate ventilation or from breathing the vapors of said product over prolonged periods.
“m. Plaintiff abandons bis claims against the defendants based upon breach of either express or implied warranties.”
The trial court ruled that the Federal Labeling of Hazardous Substances Act (15 U. S. C. A. §1261) and Regulations promulgated to supplement and implement said act (21 C. F. R. 191.7, et seq.) were not applicable to this action, and this point is not before us on appeal.
Insofar as material herein the plaintiff’s contention set forth in the amended pretrial order is:
“a. The defendants have violated a common law duty to warn the plaintiff of the health hazards involved in exposure to their products.”
and the defendants’ contention, insofar as material herein, set forth in the amended pretrial order is:
“a. By giving Beech Aircraft Corporation adequate warning of the potential health hazards of their products defendants have fully discharged any duties that they may have had.”
The trial court, after having listened to arguments of counsel, considered the stipulations and admissions of fact and the authorities cited by the parties, sustained the defendants’ motion for summary judgment “for the reason that the defendants, having given adequate warning to their immediate vendees of the potential health hazards presented by their products, had no duty to further warn the plaintiff.”
The issue presented on appeal, as heretofore stated, is an extremely narrow one.
We have been cited to no Kansas decisions, nor has our research disclosed any, involving the issue herein upon facts substantially identical.
A case from which some parallel might be drawn is Bergstresser v. Van Hoy, 142 Kan. 88, 45 P. 2d 855. There the defendant sold a used automobile to a third party. The automobile had defective brakes. The plaintiff, a pedestrian, was injured by the operation of the vehicle because of the defective brakes, and the court held the used car dealer who sold the automobile had a duty to inform the buyer of the defective condition of the automobile, and that the discharge of that duty relieved the seller of liability to the buyer, and to persons who may be injured through the operation of the automobile by the buyer.
The appellant relies on Steele v. Rapp, 183 Kan. 371, 327 P. 2d 1053. There the defendant allegedly sold a volatile fingernail polish remover to the plaintiff’s employer. The plaintiff alleged she was injured when a co-employee dropped a glass container of the polish remover and it ignited and exploded. The lower court sustained a demurrer to the plaintiffs pleadings on the ground that the dropping of the fingernail polish remover by the plaintiff’s co-employee constituted an act of negligence which was an intervening and efficient cause of the plaintiffs alleged injuries. This court reversed and remanded the case for further proceedings, holding that:
“. . . the unintentional dropping of the bottle of volatile fluid, even if negligent of itself, does not relieve the defendant of his initial and primary liability for his negligence in placing in commerce a highly inflammable and explosive substance and failing to warn or advise users of the inherently dangerous character of the apparently innocuous substance sold and delivered to the beauty shop, when the defendant knew or should have known of its dangerous characteristics and should have reasonably apprehended that it would explode and bum if not handled with great care by employees of the beauty shop.” (p.384.) (Emphasis added.)
The only reference to a duty to warn in the Steele case is almost collateral. The plaintiff’s second amended petition charged the defendant with negligence in “‘Distributing and selling a product which was imminently and inherently dangerous, without giving notice by an appropriate label or otherwise of its dangerous quality.’” (p. 373.)
In discussing this point in the opinion the court said the demurrer concedes that the defendant did not sell the fingernail polish remover in a safe container or give notice or warning by an appropriate label or otherwise of an imminently or inherently dangerous quality of such product. In Steele the court was dealing with a product that was inflammable and explosive, and the remarks of the court implied that it was the duty of the supplier to disclose by label or otherwise the dangers inherent in the product.
In the instant case the manufacturers did give adequate warning by label or otherwise of the potential health hazards of their product to Beech Aircraft Corporation, the industrial user.
In Branstetter v. Robbins, 178 Kan. 8, 283 P. 2d 455, this court distinguished between cases involving explosive products and those involving products giving rise to lesser hazards.
The general rule in regard to a supplier’s duty to warn of known dangers in the ordinary use of his products is found in Restatement, Torts (2d Ed. 1965), § 388, as follows:
“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
“(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
“(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” (pp. 300, 301.)
Under the Comment on Clause (c) a distinction is made regarding warnings given to third persons. It reads in part:
“Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. All sorts of chattels may be supplied for the use of others, through all sorts of third persons and under an infinite variety of circumstances. This being true, it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe. There are, however, certain factors which are important in determining this question. There is necessarily some chance that information given to the third person will not be communicated by him to those who are to use the chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the third person, or permission is given to him to allow others to use it. These circumstances include the known or knowable character of the third person and may also include the purpose for which the chattel is given. Modem life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particulary if it is their duty to do so. If the chattel is one which if ignorantly used contains no great chance of causing anything more than some comparatively trivial harm, it is reasonable to permit the one who supplies the chattel through a third person to rely upon the fact that the third person is an ordinary normal man to whose discredit the supplier knows nothing, as a sufficient assurance that information given to him will be passed on to those who are to use the chattel.
“Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see § 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see §293). Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them and those in the vicinity of their use, to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character.” (pp. 308, 309.)
Cases from other jurisdictions directly in point shed some light on the situation.
In Bertone v. Turco Products, 252 F. 2d 726 (3rd Cir. 1958), the plaintiff was an immigrant who had just recently come to this country, and was able to speak, understand or read very little English. He was employed by Flying Tiger Line, Inc. to clean aircraft engine parts. In the course of his employment he was given a solution called “Paint-Gon” to be used in dissolving foreign substances deposited on aircraft engine parts. “Paint-Gon” had dangerous properties and should not have been permitted to touch the person, nor should its fumes be inhaled very long. The containers in which “Paint-Gon” was made available apparently bore a warning of the danger, as did the containers in the instant case. Recommended procedure in using the product indicated that it be applied in a well-ventilated space with tools permitting the use of the substance without making direct contact with the person. The extent of the instructions Bertone received from his employer, the extent of his comprehension of whatever instructions were given, and the type of tools and working space he was assigned did not appear from the pleadings. It would appear he was injured by exposure to “Paint-Gon.”
There the plaintiff filed an action against Turco Products, Inc., the manufacturer of “Paint-Gon,” on the theory of negligence in failing to warn purchasers and prospective users of the dangerous characteristics of the product and the precautions required for its use. Turco answered and brought in Flying Tiger on a third party complaint, asserting a right to indemnity on the ground that Flying Tiger had not adequately instructed the plaintiff of the dangers in using “Paint-Gon” even though Flying Tiger had been apprised thereof, and consequently plaintiffs injury was a result, not of Turco’s negligence but of Flying Tiger’s negligence. On appeal from an order sustaining Flying Tiger’s motion for summary judgment it was said:
“Bertone asserts he was not warned of the dangers of Paint-Gon. Turco states that its warning to prospective users was adequate. If Turco’s warning was adequate, there could be no recovery from Turco by Bertone irrespective of whether or not Flying Tiger may have acted negligently as to Bertone. This would dispose of the first two possibilities of legal consequence; Bertone could not recover from Turco for negligence by Flying Tiger in failing to pass on to Bertone the manufacturer’s adequate warning when Flying Tiger assigned Bertone to the task requiring the use of Paint-Gon. It is well nigh inconceivable that Bertone, under the disability of illiteracy would have found his own way, without some explicit guidance, to the use of Paint-Gon. The supplier of the material to be used for the suppliers business purposes is under a duty to pass along the manufacturer’s warning if he knew of it. Restatement, Torts, § 391. Accord, Tulpom v. Cantor, 87 N. J. L. 213, 93 A. 573 (E. & A. 1915); Ramsey v. Raritan Copper Works, 78 N. J. L. 474, 74 A. 437 (E. & A. 1909); Cf. Restatement, Torts, § 324, Comment b. In that sort of situation it is clear that only Flying Tiger would have been negligent. Thus if Turco exercised reasonable care to inform users of Paint-Gon of that product’s dangers, Bertone cannot recover from Turco; a fortiori there would be no call for indemnity of Turco by Flying Tiger.” (p. 728.) (Emphasis added.)
In Weekes v. Michigan Chrome & Chemical Company, 352 F. 2d 603 (6th Cir. 1965), the plaintiff contracted a serious skin condition known as “chlor-acne” as a result of working with “Miccrowax C-600” sold by the defendant. A jury awarded the plaintiff $24,000 damages in an action charging that the defendant had negligently failed to provide adequate warning of the dangers involved in using this product and to advise the plaintiff of the proper precautions to avoid them. On appeal the defendant charged the district judge erred in denying his motion for a directed verdict.
The case deals primarily with whether the defendant gave any warning of the hazards of its product, and whether such notice as was given was adequate. The defendant asserted “that it was not required to see to it that each person who might be expected to use the wax was individually and by defendant adequately warned of its dangerous propensities.” (p. 607.) In response to this contention the appellate court said:
“. . . We make clear that we do not hold to the contrary. To do so would visit upon a manufacturer a burden impossible to carry. See Bertone v. Turco Products, Inc., 252 F. 2d 726, 728 (CA 3, 1958); Nishida v. E. I. Du Pont De Nemours & Co., 245 F. 2d 768, 773-774 (CA 5, 1957), cert. denied, 355 U. S. 915, 78 S. Ct. 342, 2 L. Ed. 2d 275 (1958). . . .” (p.607.)
A similar situation was presented in Foster v. Ford Motor Company, 139 Wash. 341, 246 Pac. 945, 48 A. L. R. 934. There the plaintiff, while driving a Ford tractor for his employer, Irwin, was injured when the tractor tipped over backward. An action was brought against Irwin and the Ford Motor Company, manufacturer of the tractor. The basis of the complaint against the Ford Motor Company was that it manufactured a tractor that was imminently dangerous to the life and limb of the operator, because the tractor was negligently constructed and designed in that approximately one-third of the weight of the tractor was at the front and two-thirds at its rear; that the application of power when the tractor would become mired in mud was sufficient to up-end it. The facts showed that at the time Irwin purchased the tractor he was notified by the dealer that in driving it, a foot should always be kept on the clutch. The plaintiff contended the manufacturer of an article, which, through its faulty construction is imminently dangerous to human life, is responsible to any third person using it unless notice is given to the person injured. The appellate court noted that while there are cases to this effect they “do not establish the rule to be applied to the facts in this case.” (p. 347.) In ruling upon this point the court said:
“. . . It may be assumed, for the purposes of this case, that the tractor in question was imminently dangerous, if used in a certain way. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560. It could not be, under the evidence, inherently dangerous, except under the condition which we have before outlined, viz.: the blocking of the rear wheels, and the application of tremendous power. But notice of the dangerous character of the tractor under such conditions was fully set out in the Manual of Instructions. It is admitted that the method of operation was fully explained to the Irwins at the time they purchased the machine, that they read the instructions to be followed regarding its operation if it became mired, and they fully covered a situation like the one now in question. It can hardly be contended that further notice could have been given. It cannot be said that the manufacturer should follow the machine into the hands of servants or employees of purchasers of its tractors, and notify each one of them individually that, in extreme situations, it might become dangerous. While it may be assumed that tractors generally are sufficiently simple, so that one, even though devoid of natural mechanical skill, may learn to operate them in a very short time, it cannot be said as a matter of law that the manufacturer could anticipate that one would attempt to operate its product without previous knowledge, either from experience or from the instructions provided in the manual.
“This case bears no similarity to those which involve explosive or poisonous substances bearing either misleading directions or no directions whatsoever indicating the character of the article. . . (p.347.)
Other cases that shed light upon the issue are Sagler v. Kellogg S. S. Corporation, 155 Misc. 217, 277 N.Y. S. 792 (1934); Nishida v. E. I. DuPont De Nemours & Company, 245 F. 2d 768 (5th Cir. 1957); Hopkins v. E. I. Du Pont De Nemours & Co., 199 F. 2d 930 (3rd Cir. 1952), second appearance 212 F. 2d 623; see, also, 76 A. L. R. 2d 2, 25; and see, Love v. Wolf, 226 C. A. 2d 378, 38 Cal. Rptr. 183 (1964); and Stottlemire v. Cawood, 213 F. Supp. 897 (D. D. C. 1963), where a manufacturer of dangerous medicines supplies a prescribing physician.
The appellant herein contends the issue of primary negligence, proximate cause, and intervening cause, as applied to this case, should be submitted to a jury under proper instructions. (Citing, Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590.) The appellant directs our attention to Hubbard-Hall Chemical Company v. Silverman, 340 F. 2d 402 (1st Cir. 1965). There the defendant chemical company sold bags of a preparation known as “Parathion dust” to a co-defendant who was the decedents’ employer. The bag contained a label which could be construed to have adequately warned the employer of the hazards involved in using the dust. The decedents, however, were illiterate Puerto Rico laborers who failed to use adequate precautions in using the insecticide and died as a result of poisoning after the first day’s work with the product. The employer contended in his defense that he personally instructed the decedents in the use of the dust. In an action brought against the manufacturer of the insecticide and the employer for the death of the two farm laborers, the court held:
“We are of opinion that the jury could reasonably have believed that defendant should have foreseen that its admittedly dangerous product would be used by, among others, persons like plaintiffs’ intestates, who were farm laborers, of limited education and reading ability, and that a warning even if it were in the precise form of the label submitted to the Department of Agriculture would not, because of its lack of a skull and bones or other comparable symbols or hieroglyphics, be ‘adequate instructions or warnings of its [Parathion’s] dangerous condition.’” (p. 405.)
Without question the product in Hubbard-Hall falls in the category of a highly dangerous poison, which commands a greater duty of care on the part of the supplier than the facts herein warrant.
We hold the rule announced in Bertone and Weekes is applicable to the facts herein — the manufacturer of a product which is potentially hazardous to health and who gives adequate warning of such potential hazard, by label or otherwise, to its immediate vendee, an industrial user, has no additional duty to warn the vendee’s employee of such hazards, and is not liable in a negligence action to such employee for failure to do so.
The court is not here confronted with a highly dangerous explosive or poisonous product. The manufacturers of the products used herein had every right to anticipate that Reech Aircraft Corporation, an industrial user to whom these products had been supplied, would pass on the warnings of the manufacturer that these products were potentially hazardous to the health of its employees who were assigned the task of using them in their work, and that proper precautionary measures would be taken by Beech Aircraft Corporation to make the use of these products safe for its employees, all in accordance with the particular duty of Beech Aircraft Corporation to do so.
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The opinion of the court was delivered by
Fromme, J.:
This is a wrongful death action brought by the parents of Carol Mann, deceased. Carol died as a result of an automobile collision in Bourbon county. She was a guest passenger in an automobile driven by Robert L. Good.
The case was tried to the court without a jury. The court made extensive findings of fact and entered judgment in favor of plaintiffs and against the defendant Robert L. Good in the sum of $11,460.11. The claim against the defendant Roberta J. Hixon was dismissed at the close of the evidence and no question is raised concerning the dismissal. The defendant-appellant, Robert L. Good, will be referred to in this opinion as the defendant. He has appealed from the judgment.
The plaintiffs filed notice of cross-appeal from a post trial order setting the amount of a supersedeas bond and staying further proceedings to collect the judgment, but in their brief they make no contention and present no argument with respect to such ruling. We therefore consider the cross-appeal as abandoned. (Marks v. Frantz, 179 Kan. 638, 640, 298 P. 2d 316.)
The eight points stated as error by defendant present one basic question to be decided in this appeal. Was the evidence sufficient to support the findings of the trial court and the conclusion that defendant’s conduct amounted to gross and wanton negligence?
The facts which gave rise to this claim for relief were set forth in the trial court’s memorandum decision as follows:
“The Court finds the facts to be as follows: On the afternoon of June 17, 1965, a bright, sunshiny day, deceased was riding as a passenger in an automobile driven by the defendant. The deceased had been dating a brother of the defendant for two years; the brother was working that afternoon and the deceased had accompanied the defendant to the Fort Scott City Lake, where they watched the bathers and the activities around the lakeside for an hour or more. They were returning to Fort Scott about 5:15 o’clock p. m. At the time of the collision they were headed east on a blacktop county road. Defendant was driving his 1950 Ford automobile between 60 and 70 miles per hour, with his car in overdrive. The car was old but it had new tires and was in good mechanical condition. Prior to the collision the deceased asked defendant to slow down but he did not do so. Immediately after he topped a hill approximately one and one-half miles south and one mile west of Fort Scott, he met two westbound cars, the first driven by Reuben Rankin, the second by Roberta J. Hixon. Defendant crowded Mr. Rankin, who pulled his vehicle over in order to pass. Miss Hixon, meanwhile, was slowing her vehicle preparatory to turning into a lane on the south side of the highway. She was about four car lengths behind the Rankin vehicle. Miss Hixon’s car remained at all times in her right-hand or westbound lane; she was not giving any turn signal. Defendant applied his brakes vigorously; his car went into a skid and slid at an angle down the highway, the right front of the defendant’s car striking the left front of the Hixon vehicle. The point of impact was approximately one foot north of the center line of the roadway.
“The highway in the area of the collision was a narrow (18-foot) rough blacktop road in poor condition, rounded to the center; the edges of the blacktop were jagged and what little shoulder there was, was rough, covered with rock and gravel and had holes in it. Defendant Good was familiar with the highway over which he was driving. The speed limit on this highway was reasonable and prudent under the conditions then existing,’ and was required to be so controlled as necessary to avoid colliding with any vehicle on the highway, in compliance with legal requirements and the duty of all persons to use due care, and to be appropriately reduced when traveling upon any narrow roadway, with a maximum of 70 miles per hour. (K. S. A. 8-532 (a) (b) and (c).”
The factors present in the evidence upon which the trial court concluded defendant’s conduct was gross and wanton were set forth in the court’s decision as follows:
“What were the factors present? Defendant Good was acquainted with the highway over which he was driving; he knew that it was narrow, rough, and that there were a number of private driveways serving suburban and farm homes in the vicinity of the collision. The terrain was such that one driving eastward could not see a section of the road in the valley — where the driveways are located. Defendant Good was driving at a speed of 60 to 70 miles per hour — faster than is reasonable or prudent, excessive under the conditions then existing. Traffic was fairly heavy. The deceased had remonstrated with defendant and requested him to reduce his speed, but he continued to drive at the same speed, not even reducing his speed as he crested the steep hill just west of the collision scene. He left the transmission in overdrive — thus he could not count on the compression of his engine as a braking force. On the steep downgrade he encountered two cars in close proximity approaching him on the narrow roadway. He slammed on his brakes; his car went into a skid and slide, and the fatal collision ensued. One seeing the roadway, the narrowness of the blacktop, the roughness of the road, the lack of effective shoulders and knowing the steepness of the hill, could not help but realize the imminence of danger, should there be cars approaching in the hidden area over the hill. The Court concludes that the defendant realized the imminence of danger and recklessly disregarded it; that his conduct was gross and wanton, and the proximate cause of the collision.”
Defendant contends there was no substantial evidence that he was driving sixty to seventy miles per hour or that Carol Mann asked him to slow down. The defendant says the court should have disregarded the testimony of the dead girl’s father who related a conversation with defendant following the death of his daughter. In this conversation the defendant made the admissions to the father. These admissions were relevant evidence. Defendant further contends evidence of four vehicles traveling this county road did not justify a finding that traffic was fairly heavy. He also argues three private driveways in the vicinity of the collision scene do not justify the finding that there were a number of private driveways serving homes in the vicinity. These arguments are directed to the weight of the evidence and the credibility of the witnesses.
When the trial court’s findings are attacked because of insufficiency of the evidence, the power of a reviewing court begins and ends with the determination of whether there is any substantial evi dence to support the findings. This court does not pass on the credibility of witnesses or the truth of their testimony. It is the function of the trier of facts, not of the reviewing court, to determine which witness and what testimony it should believe. (See Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116 and cases cited therein.)
Substantial evidence means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which the issues can reasonably be resolved. (See Newcomb v. Brettle, 196 Kan. 560, 413 P. 2d 116 and cases cited therein.)
We have examined the record and there is relevant evidence possessing substance which furnishes a basis for the facts set forth in the findings of the trial court.
Do the facts found by the trial court amount to gross and wanton negligence?
In Saunders v. Shaver, 190 Kan. 699, 378 P. 2d 70, this court said:
"... A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result. . . .” (p. 701.)
This definition of gross and wanton negligence was further refined in Muhn v. Schell, 196 Kan. 713, 413 P. 2d 997, where it was held:
“Wantonness constituting gross and wanton negligence, as that term is used in the automobile guest statute (K. S. A. 8-122b), indicates a realization of the imminence of danger, and a reckless disregard, complete indifference and unconcern of the probable consequences of the wrongful act.” (Syl. f 1.)
“The mental attitude of the wrongdoers, rather than the particular negligent act or acts, tends to establish wantonness, and whether the necessary elements are present to constitute wantonness must of necessity depend on the facts and circumstances of each particular case.” (Syl. ¶ 2.)
The trial court was cognizant of what is necessary to constitute gross and wanton acts. It determined from the evidence defendant was acquainted with the dangers present in traveling this particular stretch of road. The defendant approached the brow of the hill driving his 1950 Ford, equipped with four barrel carburetor, eight cylinder motor and special transmission, at an excessive rate of speed. He ignored his passenger’s request to slow down. Under these and other circumstances shown by the record the trial court was justified in concluding defendant realized the imminence of danger and proceeded in the face of protests from his passenger with reckless disregard for the probable consequences of his acts. We cannot say as a matter of law these findings do not support the conclusion of gross and wanton negligence.
The judgment for plaintiffs against the defendant, Robert L. Good, is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the application of an exclusionary clause in a liability insurance policy.
The facts are very limited. It would appear that there was a stipulation as to the facts in the court below which was not made a part of the record on appeal. We must, therefore, consider the facts as stated by the trial court in its memorandum opinion as follows:
“The facts, as briefly as this Court can state them, are that the insurance company had issued a regular farm liability policy of insurance to the defendant Folkerts prior to September 27, 1964, and that it was in full force and effect on that date. On that date the defendant Folkerts went upon the plaintiff’s farm without plaintiff’s permission. Also without plaintiff’s permission the defendant Folkerts took a tractor of the plaintiff and started taking it down the road towards his own residence intending to use it for his own purposes. While doing so he damaged the tractor. . . .”
An action was brought by the plaintiff, Paul Herrman, to recover for the damages to his tractor. The petition, omitting the caption, read:
“Comes now the plaintiff and states that defendant damaged plaintiff’s case tractor on or about September 27, 1964, that the damage was caused by defendant’s negligence and at a time that he did not have permission to use said tractor, and that as a direct result plaintiff has suffered a loss of $717.65.
“Wherefore, plaintiff prays for judgment for the sum of $717.65 plus cost, interest and all other proper relief.”
The defendant called upon his insurer, National Farmers Union Property and Casualty Company, garnishee defendant and appellant here, to defend.
The liability policy contained the following coverage:
'7. Coverage A-Farm and Personal Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage.”
The coverage was subject to the following exclusionary clause:
“This policy does not apply:
“(i) under Coverage A to property damage to any property owned by, rented to, occupied or used by, or in the care, custody, or control of, or transported by the insured;”
The insurer denied liability based on the exclusionary clause and refused to defend.
Judgment was entered by default. The journal entry read in part:
“. . . Thereupon evidence is introduced on said petition and the court finds that the summons herein was served personally on the defendant, along with a copy of the petition herein, on the 14th day of October, 1964, and that no answer or other defense has been filed by the defendant in this action; the court further finds that the allegations in the petition are true and correct and that the defendant, while a trespasser, injured the plaintiff’s tractor causing loss to the plaintiff in the amount of $697.12.”
Pursuant to an affidavit filed on behalf of the plaintiff, an order of garnishment was issued directed to the defendant and his insurer. Again, the insurer denied liability contending as a matter of law it had no liability because the damages involved were caused by defendant’s intentional wrongdoing, and the exclusionary clause in the policy excludes coverage.
The trial court concluded that the case presented only a question of law without a genuine issue of any material fact and granted summary judgment for plaintiff. The reason for the trial court’s conclusion was stated in its memorandum opinion. It first found that covering the insured for his own wrong would not be against public policy under the circumstances, and then concluded:
“The next contention presented by the insurance company is that the policy specifically excludes liability because the tractor was in the care, custody and control of the insured.
“It was conceded by Counsel that the defendant Folkerts was a trespasser. As such he had no right of possession. He entered upon the plaintiff’s land and took his tractor wholly without right or authority. The words found in the insurance policy connote a lawful, normal and customary situation of 'care, custody and control’. The same can be said about the words 'occupied or used by’. It obviously was not rented by the plaintiff to the defendant, and any transportation by the defendant was just as much without authority as was defendant’s possession. (Sec. 62 ALR 2nd 1247, and Gt. Am. Indem. Co. v. Saltzman cited therein, and found in 213 Fed 2nd 743.)”
The comment in the citation, 62 A. L. R. 2d 1247, constituted some authority for the trial court’s ruling. However, the statement made in the annotation is much too broad and the broad statement is not supported by the case cited. The A. L. R. statement reads:
“. . . In other words the term ‘care, custody, or control’ implies at least a temporary right to possession. Consequently, a trespasser having no right to possession whatsoever cannot have ‘care, custody, or control’ of the damaged property within the meaning of the exclusion clause. This conclusion was reached in Great American Indem. Co. v. Saltzman (1954, CA 8 Ark) 213 F2d 743, cert den 348 US 862, 99 L ed 679, 75 S Ct 85, in construing an exclusion clause of the kind under consideration. . . .” (p. 1246.)
It will be understood that there are many degrees or different classifications of trespass ranging all the way from an innocent trespasser to a willful and malicious trespasser. An intermeddler who enters upon the property of another simply to have an innocent look and accidentally, though negligently, damages personal property with no intention of using it or taking it into his “care, custody, or control” would no doubt be covered by the liability policy and would not be subject to the exclusionary clause. However, a much different situation would exist where a willful or malicious trespasser enters upon the property of another intending to and does take a vehicle into his own control and removes it for his own use without the consent of the owner.
It was the former situation which the court had under consideration in Great American Indem. Co. of New York v. Saltzman, 213 F. 2d 743, cited in A. L. R. as authority for the statement heretofore quoted.
In the Saltzman case the defendant, an airplane enthusiast, had in mind purchasing a new plane. He was attracted by a plane standing at an airport and entered the cockpit for the sole purpose of inspecting its mechanism and its various gadgets. The entrance was without the knowledge or consent of the owner. The defendant engaged the starter control and to his surprise and amazement the engines started propelling the aircraft into a hangar some ninety feet away resulting in considerable damage to the plane. The ruling of the United States Circuit Court of Appeals, Eighth Circuit, is stated in the head note as follows:
“Airplane enthusiast, who was insured under personal liability policy, which did not apply to ‘use,’ including loading and unloading, of aircraft, or to destruction of property ‘used’ by or in the ‘care, custody or control’ of insured, and who entered stranger’s airplane without permission for purpose of inspection, did not have the airplane in his ‘use’ or ‘care, custody or control’ and was entitled to indemnity for loss sustained when he experimented with controls and caused airplane to run into hangar.” (Headnote # 3.)
In the opinion it is stated:
“. . . The acts of the plaintiff in this case were negligent acts and in that sense were wrongful but they were not, so far as disclosed, wilful, malicious, or criminal, and no public policy is involved in permitting one to insure against the results of such acts.” (p. 748.)
We have no quarrel with the opinion in the Saltzman case. The insured did not intend to and did not take custody or control of the airplane. The case is no authority under the facts which we have before us where the tractor was willfully and wrongfully taken into the possession and control of the defendant for his own use.
Having no cases in point from this jurisdiction, we have examined the cases from other states which are cited in the briefs but do not find them helpful in view of the peculiar facts before us.
We are constrained to hold that under the facts in the present case the insured did have “care, custody, or control” of the tractor as those words are used in the exclusionary clause. Control of the insured refers to posessory handling of the property as distinguished from proprietary control.
Our decision is further influenced by the consideration that the limited facts as presented here constitute a crime in this state under the provisions of K.S.A. 21-544, which provides:
“That any person who shall take, carry away and use any horse or other domestic animal, or any automobile or other vehicle or conveyance or other personal property of any kind, with intent to deprive the owner of the temporary use thereof, against the owner’s will but not with the intent of stealing or converting the same permanently to his own use, such person shall, on conviction, be adjudged guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars, or be imprisoned in the county jail not more than one year, or by both such fine and imprisonment.”
It is generally held that an insurance policy is void as against public policy if its intent is to indemnify tibe insured against liability for his criminal acts. (44 C. J. S., Insurance, § 242b, p. 1005.) This court will construe a contract of insurance so as to uphold its validity if reasonably possible. (Gas Co. v. Altoona, 79 Kan. 466, 100 Pac. 50; Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P. 2d 368.)
The judgment is reversed with directions to the trial court to enter judgment for the garnishee, National Farmers Union Property and Casualty Company.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
Michael Joseph McDermott was convicted of first degree murder. A jury imposed life imprisonment and the defendant is serving the sentence in the penitentiary at Lansing, Kansas. His motion for new trial was denied and he has appealed.
McDermott was convicted of murdering his wife, Francis, on September 26, 1966, in Riley county, Kansas. The marital difficulties which culminated in this tragic death began in Iowa and ended in Kansas at the Blue Hills Shopping Center at Manhattan. The wife died as a result of a bullet wound. The bullet was fired from a pistol in the hand of her husband while six witnesses looked on.
The couple were married and lived in Atlantic, Iowa. The marriage occurred in April 1966. In July of that year the wife was hospitalized as a result of a family quarrel. The defendant accused his wife of infidelity and administered a physical beating in an effort toward discipline. In mid-September after leaving the hospital the wife departed from Iowa and came to live with her brother near Manhattan, Kansas.
The defendant remained in Iowa for a time. He purchased the death weapon on September 17. A service station operator in Atlantic testified the defendant picked up a Kansas roadmap and had his car serviced on September 25. While in the station defendant told this witness he was having family troubles and if he couldn’t get them straightened out “someone was going to get shot.” The following day the defendant drove into a service station north of Manhattan, Kansas, on U. S. Highway 24. He parked his car behind the station in a position where it was concealed from travelers using the highway. His wife was living some distance north of this service station and used the highway in going to and from her work in Manhattan.
His wife left for work that morning at seven o’clock and traveled south on the highway which lead past the service station. A few minutes thereafter two cars careened into the parking lot at the Blue Hills Shopping Center. Six eyewitnesses testified as to what transpired in the parking lot. Their accounts of what occurred were substantially the same.
The defendant and his wife got out of separate cars and an argument ensued. The defendant grasped his wife by the arm and attempted to force her into his car. The wife resisted and begged people in the area to help her. No help was forthcoming. The death weapon was lying on the front seat of the car. Defendant obtained the pistol and a shot was fired from the gun in his hand. The bullet penetrated the wife’s left forearm, entered the left breast and penetrated the tip of her heart. The wife slumped to the ground. The defendant placed her in his car and drove to his brother-in-laws house.
The brother-in-law testified he saw the defendant drive up to his house at 7:25 a. m. The defendant leveled a pistol at him and said, “I’ll teach you to mess in my family affairs.” The brother-in-law escaped to a neighbor’s house. His wife witnessed the incident and overheard the defendant’s statement.
The police arrived and took the defendant into custody. Mrs. McDermott lay dead on the floor of the carport. The death weapon was obtained from defendant’s pocket.
The resulting trial ended with a sentence of life imprisonment and this appeal which followed is based upon four specifications of error.
The defendant requested a specific instruction that if the jury found the death was by accident they must acquit the defendant. He assigns error on refusal to give requested instruction.
Although the specific instruction requested was not given the matter was adequately covered in the general instructions which set forth and defined the essential elements of first and second degree murder and first degree manslaughter. The jury were instructed they must find the death resulted from an intentional and wilful act on the part of the defendant. They were further instructed:
“. . . If you do not find each and every one of these propositions to be true, from the evidence, beyond a reasonable doubt, you must acquit the defendant without further inqury.”
The instructions to the jury were adequate on this point.
Defendant contended the killing was in the heat of passion without design to effect death and requested an instruction on third degree manslaughter. The court refused to give the instruction.
The instructions in a criminal case are to be confined to the issues in the case as determined by the charge in the information and the evidence adduced at the trial. Failure to instruct the jury on some lesser degree of the crime charged is not ground for reversal if the evidence at the trial excludes a theory of guilt on the lesser degree of the crime. In State v. Linville, 148 Kan. 142, 79 P. 2d 869, it was held reversible error to instruct on second degree manslaughter when the evidence adduced at the trial failed to establish such crime as charged in the information. In State v. Hockett, 172 Kan. 1, 238 P. 2d 539, the defendant was charged with robbery in the first degree and it was held the court was not required to instruct on any lesser degree of the crime when the trial evidence negated guilt of a lesser degree. Similar holdings in first degree murder cases may be found in 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, and State v. Hoy, 199 Kan. 340, 430 P. 2d 275.
We must next determine the legal meaning and significance of the term “heat of passion.” In 1 Wharton’s Criminal Law and Procedure (Anderson) § 275 it is said:
“When the defendant seeks to reduce his offense from murder to manslaughter on the ground that he acted in hot blood upon circumstances constituting legal provocation, it is necessary that he show that he was in fact provoked by circumstances constituting legal provocation. If the defendant has voluntarily committed homicide without in fact having been provoked into a passion, he is guilty of murder.
“The passion aroused by the provocation must be so violent as to dethrone the reason of the accused for the time being; it must prevent thought and reflection, and the formation of a deliberate purpose. The theory of the law is that malice cannot exist at the same time as passion of this degree, and that the act of the defendant therefore cannot be considered the product of malice aforethought. Mere anger, in and of itself, is not sufficient, but must be of such a character as to prevent the individual from cool reflection and a control of his actions. . . .” (p.583)
This court has said the term “heat of passion” includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. (State v. Linville, supra; State v. Jones, 185 Kan. 235, 341 P. 2d 1042.) However, in order for a defendant to be entitled to a reduced charge because he acted in the heat of passion his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.
In the present case the defendant testified he may have been upset but he was not mad or angry at the time. The circumstances surrounding his actions show insufficient provocation to give rise to a condition of “heat of passion” as recognized in the law. Defendant testified that on arriving at the shopping center he and his wife got out of their cars and exchanged greetings. He then asked his wife to get in his car to talk. He expressed his concern over the welfare of his wife’s stepchild. The defendant testified as to the subsequent events as follows:
“Q. What happened, next, Mr. McDermott?
“A. She reared back, almost threw me off my feet. I said ‘Fran, don’t go starting that stuff.’ I said, ‘calm down,’ So I took her by the shoulder nice and easy getting her, wanting her to get into the ear. So the same thing while she was trying to get into the car, I said to her, I says, ‘Fran,’ I said, ‘your sister-in-law told me that she don’t give a damn about you, but she’s deeply interested in that youngster.’
“Q. All right, after this was said, what happened next, Mr. McDermott?
“A. After this when she started into partially into the automobile, all of a sudden that gun was in my hand.
“Q. Where were you standing and where was she standing?
“A. She was standing — with the door open to the car — approximately right up against the car.
“Q. What happened then?”
“A. As I repeated before, when she said — I said to her, ‘Fran, what about that youngster?’ and with that, that, that split moment, she said ‘that’s nobody’s God damned business,’ and when she did the gun went off.
“Q. You had the gun in your hand though?
“A. That is true.
“Q. And it went off.
“A. That is right.
“Q. Mr. McDermott, what happened after that?
“A. I said, ‘Fran’ — excuse me. ‘Fran,’ I said, now why did you do that?’
“Q. Well, what happened to her?
“A. She went down, I couldn’t hold her. I reached down to pick her up, I thought she had fainted. I reached down to pick her up and I discovered blood on my hands. Then I got to thinking T have got to do something quick —what?’ I picked her up, placed her in the automobile on the front seat of the car, turned around out of the driveway as fast as I could, thinking of her brother’s place, maybe I can locate that place immediately and get her a doctor or a hospital.”
The prosecution called six eyewitnesses to this shooting. Their testimony together with that of the defendant excluded any theory that defendant acted in the heat of passion provoked by circumstances constituting legal provocation for such an emotional state. It was not error under the evidence adduced for the trial court to refuse an instruction on third degree manslaughter.
The defendant specifies further error on the part of the trial court in overruling a motion for change of venue. As grounds for said motion he alleged a fair trial could not be had in Riley county because of publicity received from a local newspaper and a local radio station. Two witnesses were called by him and testified in support of said motion. The manager of the radio station testified that his station carried eighteen factual reports of the shooting incident and there was considerable interest in the community for a week or ten days after the incident. The editor of the newspaper testified his paper carried two articles concerning the matter. The exact nature of the broadcasts and of the news articles is not disclosed. Both witnesses said the people they talked with based their knowledge of the incident upon this publicity. The two witnesses did not disclose the names of the people to whom they talked. No prejudice against the defendant was disclosed by this testimony.
K. S. A. 62-1318 and 1319 provide that a change of venue may be ordered by the judge whenever it shall appear the minds of the inhabitants of the county or of the district in which the cause is pending' are so prejudiced against the defendant that a fair trial cannot be had. K. S. A. 62-1321 provides that an applicant shall set forth the facts upon which the change of venue is based and the truth of the allegations shall be made to appear by affidavit to the satisfaction of the court.
A change of venue on account of prejudice against the accused by the inhabitants of the county in which the case is pending should not be granted unless it is made to appear affirmatively that such prejudice exists as will be reasonably certain to prevent a fair trial. (State v. Paxton, 201 Kan. 353, 440 P. 2d 650.)
There were no affidavits and no testimony introduced on the hearing which tended to prove the inhabitants of Riley county were prejudiced against the defendant. The voir dire examination of the jury does not appear in the record but there is no claim of difficulty in selecting a jury. The record discloses nothing to indicate prejudice.
The record does not disclose what part of this publicity occurred during the trial. A claim that defendant was deprived of a fair trial by reason of publicity attending the trial proceedings cannot be sustained when defendant fails to show that a single member of the jury was made aware of the publicity; and when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings. (State v. Eldridge, 197 Kan. 694, 421 P. 2d 170, cert. den. 389 U. S. 991, 19 L. Ed. 2d 483, 88 S. Ct. 486.)
The record discloses nothing to indicate lack of a fair trial.
The final specification of error is directed toward statements made by the county attorney in his closing argument to the jury.
The closing argument is not contained in the record on appeal.
The defendant contends the county attorney went beyond the limits of proper argument, inflamed the jury against him and the court erred in not admonishing the jury to disregard such statements.
The statement attributed to the county attorney and admitted by him on oral argument is, “think of the terror of this little girl Jennifer if this man is allowed to walk the streets . . . don’t let him out so he may kill someone else.” The evidence at the trial indicated that Jennifer was a stepdaughter of the deceased. She had been present during some of the marital quarrels in Iowa. These quarrels resulted in the hospitalization of Jennifer’s stepmother.
The purpose of and limits to proper advocacy before a jury were set forth in State v. Wilson, 188 Kan. 67, 360 P. 2d 1092, as follows:
“It is the duty of the county attorney in a criminal prosecution to see that the state’s case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court, and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. When a prosecuting attorney persists in objectionable argument, as in the instant case, then the court may, and should, declare a mistrial or grant a new trial. (Citing case.) (p. 73)
“The primary purpose of argument by counsel is to enlighten the jury so that they may render a correct verdict, and counsel should not go beyond the scope of legitimate argument, and his arguments must be confined to the law and the evidence in the case under consideration. Counsel may indulge in impassioned bursts of oratory, or what he may consider oratory, as long as he introduces no facts not disclosed by the evidence. (88 C. J. S. Trial § 169, p. 337.) In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence. . . .” (p. 73)
The statements of the county attorney in the present case appear to be confined to proper comment on the law and evidence in the case. This claim of error appears to be more of an afterthought by the defendant. He made no objection to the statements during the argument to the jury. He made no request to admonish the jury to disregard the statements. The contention is without merit.
We find no prejudicial error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the respondent and its insurance carrier from a lump sum judgment entered in favor of the claimant in a workmen’s compensation proceeding pursuant to K. S. A. 44-512a, for the failure of the respondent and its insurance carrier to pay compensation and medical expenses awarded to the claimant, the injured workman.
The basic question presented is whether K. S. A. 44-512a requires the service of written demand for payment of compensation upon the insurance carrier.
On the 24th day of June, 1965, Carl K. Shinkle, claimant, sustained an accidental injury while employed by the State Highway Commission of Kansas. Thereafter, he filed a workmen’s compensation claim against his employer and its insurance carrier, Carriers Insurance Company. On the 7th day of July, 1966, the examiner found the claimant was totally disabled and awarded compensation at the rate of $42 per week for 415 weeks in the total sum of $17,430. The examiner ordered payment of the 53 weeks of accumulated compensation due in the amount of $2,226 in a lump sum, and directed payment of the remaining 362 weeks at $42 per week in addition to ordering an award of medical expenses to the claimant.
On July 8, 1966, the workmen’s compensation award was filed with the director of workmen’s compensation. No written request for review of the award was filed with the director by the respondent or its insurance carrier within ten days as provided in K. S. A. 44-551.
Thereafter, on the 18th day of July, 1966, pursuant to 44-551, supra, the director entered his formal order approving the award.
On the 20th day of July, 1966, the claimant served a written demand under K. S. A. 44-512a by registered mail on the State Highway Commission of Kansas (claimant’s employer) and on Walter A. Sawhill, as attorney of record for the State Highway Commission of Kansas and as attorney of record for Carriers Insurance Company, its workmen’s compensation carrier.
No written demand was served directly on Carriers Insurance Company. The service was only on its attorney of record in the compensation proceeding.
No payment of compensation was made within the twenty-day period following the demand, and the claimant then filed his petition in the district court of Shawnee County asking for a lump sum judgment pursuant to 44-512a, supra.
On the 8th day of March, 1968, the trial court sustained the claimant’s motion for summary judgment and entered judgment against both the respondent and its insurance carrier for a lump sum in the amount of $15,915.67.
The apparent confusion was occasioned by an oral request for review made by the respondent and its insurance carrier a few days after the director approved the examiner’s award on the 18th day of July, 1966. The director entertained such oral request, and on the 21st day of October, 1966, entered a subsequent order setting aside the order of July 18,1966, and, after reviewing the matter, approved the examiner’s award.
An appeal taken from the director’s order of October 21, 1966, was determined by this court in Shinkle v. Kansas State Highway Commission, 200 Kan. 191, 434 P. 2d 836. It was there held under the provisions of K. S. A. 44-551 that a timely written request was essential to invoke the jurisdiction of the director of workmen’s compensation to review an award of compensation entered by the examiner; that once the director had entered an order approving the award of compensation he lacked the jurisdiction and authority to reopen the matter, except under K. S. A. 44-528 relating to review and modification of an award on the grounds of changed conditions; and that the district court did not err in dismissing the appeal.
The claimant filed his action under 44-512a, supra, to recover a lump sum judgment on the foregoing award by reason of nonpayment by the respondent and its insurance carrier of weekly compensation and medical expenses awarded the claimant and not paid as demanded on the 27th day of September, 1966. It was after the above decision of the Supreme Court that claimant filed his motion for summary judgment in this action on December 22, 1967.
Appeal has been duly perfected to this court from the order of the district court sustaining claimant’s motion for summary judgment.
The appellants state the points relied upon as follows:
“A. The trial court erred in sustaining the plaintiff’s Motion for Summary Judgment for the following reasons:
“(1) K. S. A. 44-512a requires that service of written demand for payment of compensation shall be made upon the person, firm or corporation liable to pay the same and upon their attorney of record. This is a prerequisite before suit can be filed under this statute.
“(2) In this case the party paying the compensation and responsible for paying compensation in the future was the defendant Carriers Insurance Co.
“(3) That no written demand for payment of compensation was ever served upon the Carriers Insurance Company prior to the suit being filed.
“(4) That the respondent Carriers Insurance Company had no notice, either actual or constructive, that any written demand had been served upon its insured State Highway Commission or the attorneys of record, Sawhill & Southard.
“B. The action of the Workmen’s Compensation Director in the granting of a Review and Modification after he had inadvertently entered an order affirming compensation led the Carriers Insurance Company to believe that the matter was still pending before the Director and there would be no obligation to pay compensation till the Director finally approved the Examiner’s award, which was finally approved on October 21, 1966. Thereafter, the insurance company did pay compensation and it would be a manifest injustice to affirm the lump sum judgment of the District Court under these facts and circumstances.”
K. S. A. 44-512a, insofar as material herein, provides:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation, payment of said demand is thereafter either refused or not made within twenty (20) days from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt.” (Emphasis added.)
It is to be noted that service of a written demand for payment under 44-512a, supra, is to be made personally or by registered mail on the “person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation.
Did the written demand served in the instant case comply with the requirements of 44-512a?
The appellants contend the attorney of record for the insurance company either through neglect or mistake failed to advise Carriers Insurance Company that demand for compensation had been made and that there is no evidence whatever that Carriers Insurance Company had any notice whatsoever of the demand herein until this action was filed. The appellants take the position that when an insurance company is in the position of having to pay a substantial amount under 44-512a, supra, then it should have actual notice of the demand before it is to be penalized to pay the award in a lump sum judgment as against paying the award by the week which the law provides. They contend service upon the attorney or the insured is not sufficient.
The appellants argue the record in this case clearly discloses that the insurance company has made all payments of compensation; and that in this case, as in all workmen s compensation cases, the insurance carrier is the person, firm or corporation liable for the payment of compensation.
This court has been consistent that the workmen s compensation act provides a procedure of its own which is substantial, complete and exclusive in compensation cases, borrowing neither from the civil code nor other statutes. (Bushman Construction Co. v. Schumacher, 187 Kan. 359, 356 P. 2d 869; Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P. 2d 270; Teague v. George, 188 Kan. 809, 365 P. 2d 1087; and Garrigues v. Fluor Corporation Ltd., 201 Kan. 156, 439 P. 2d 111.)
The workmen’s compensation act provides who is liable to pay compensation to the injured workman.
K. S. A. 44-501, insofar as pertinent herein, provides:
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, ... he liable to pay compensation to the workman in accordance with the provisions of this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act: . . .” (Emphasis added.)
From this section it will be noted the State Highway Commission of Kansas, the claimant’s employer, was the legal entity under 44-512a, supra, liable to the injured workman to pay the compensation awarded. The claimant herein caused the State Highway Commission of Kansas and Walter A. Sawhill, its attorney of record, to be served by registered mail with the written demand under 44-512a, supra. In addition, the claimant served a written demand by registered mail upon Carriers Insurance Company by serving Walter A Sawhill, its attorney of record.
In the instant case the examiner found that the Kansas State Highway Commission and Carriers Insurance Company appeared by their attorney, Walter A. Sawhill, of Wichita, Kansas.
When an attorney in good standing enters an appearance for a party in an action, the presumption is that he has authority to do so. (Kackley State Bank v. Nichols, 162 Kan. 648, 179 P. 2d 186; and Meyer v. Schmidt, 184 Kan. 21, 334 P. 2d 345.)
The fact that all payments on the award which had been paid were made by the Carriers Insurance Company is immaterial to the determination of this case. Neither is it material that the written demand under 44-512a, supra, was not served by the claimant on the insurance company personally. When the claimant served his employer and its attorney of record with the written demand by registered mail, the requirements of 44-512a, supra, for service of the demand were met.
The foregoing construction of the language in 44-512a, supra, is fortified by the provisions in K. S. A. 44-559 which provide:
“Every policy of insurance against liability under this act shall be in accordance with the provisions of this act and shall be in a form approved by the commissioner of insurance. Such policy shall contain an agreement that the insurer accepts all of the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance may be entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer. (Emphasis added.)
The foregoing construction is further fortified by the provisions of K. S. A. 40-2212 which provide in part:
“Every policy issued by any insurance corporation, association or organization to assure the payment of compensation, under the workmen’s compensation act, shall contain a clause providing that between any employer and the insurer, notice to and knowledge of the occurrence of injury or death on the part of the insured shall be notice and knowledge on the part of the insurer; and jurisdiction of the insured shall be jurisdiction of the insurer and the insurer shall be bound by every agreement, adjudgment, award, or judgment rendered against the insured. . . .” (Emphasis added.)
The foregoing statutory sections, among others, were considered by this court in Landes v. Smith, 189 Kan. 229, 368 P. 2d 302, where the insurance carrier challenged an award in a workmen s compensation case on the ground that it did not receive notice of the hearing held before the examiner. (See, also, Evans v. Western Terra Cotta Co., 145 Kan. 924, 67 P. 2d 426; and Babcock v. Dose, 179 Kan. 298, 293 P. 2d 1007.)
In the Babcock case the court held that the petition in a 44-512a action did state a cause of action against the employer as the “person, firm or corporation liable to pay the same” where the insurance company was not joined as a defendant in the 44-512a action. It should be noted 44-512a, supra, was amended in 1961 by adding the requirement that service also be made on the attorney for the person, firm or corporation liable to pay the compensation awarded.
As to point “B” heretofore stated in the appellants’ statement of points, the appellants timidly argue they believe the director’s action was proper when he consented to hear their oral request for review of the examiner’s award, by reason of which they apparently felt it was not necessary to notify the insurance company of the demand for compensation, since the director had advised that he was going to review the case. They argue it would have been proper for the lawyers to assume that since the director was going to review the case, he in effect had not approved the award, and therefore the demand for compensation served on July 20, 1966, was premature, since no final order had been made as required by the decision in Harper v. Coffey Grain Co., 192 Kan. 462, 388 P. 2d 607. The appellants contend that while the director was in error in his action, the attorneys and their clients have a right to assume that such action was proper, and they should not suffer the consequences if the director or the courts make an error.
The decision of this court on the first appearance of this case indicates that both the director of workmens compensation and counsel for the appellants were in error by reason of their failure to follow the provisions of the workmens compensation act. In substance, what they assert in their brief is that equitable matters are entitled to consideration. But there are no provisions in the workmen’s compensation act authorizing equitable considerations of this nature. (See, Landes v. Smith, supra.) In oral argument of the case to this court the appellants appear to have abandoned this point.
More than two months after the briefs of the respective parties were on file in this case, the appellants filed a motion in this court to amend the statement of facts and to present additional argument. This was denied by the court with leave to renew their motion on oral argument of the case before the Supreme Court. By their motion the appellants request to amend their statement of points to add that the written demand for the payment of compensation made herein was premature in that it was served before any compensation was due — that it was served three days after approval of the award by the director and prior to the expiration of the appeal time authorized by K. S. A. 44-556. (See, Hunter v. General Motors Corporation, No. 45,360, 202 Kan. 166, 446 P. 2d 838.) The appellants assert the record presented was agreed upon by the parties and it clearly discloses the demand for compensation on July 20, 1966, was made before compensation was due.
The trial court in the instant action in the numerous hearings it conducted repeatedly pressed the appellants to delineate the issues asserted. Consistently the appellants asserted the only point they were pressing upon the trial court was their contention that the 44-512a demand for compensation was not properly served.
On this point the trial court correctly determined the issue by granting the claimant’s motion for summary judgment.
It has been consistently held that this court will not for the first time consider an issue on appeal that has not been presented to the trial court. (State v. Arlis Blair, 197 Kan. 691, 421 P. 2d 22, and authorities cited therein.)
It has also been held that no issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, will be considered on appeal unless included in the statement of points in the record on appeal, in accordance with Rule No. 6 (d) of this court relating to appellate practice. (197 Kan. lxi. ) (Crowther, Administrator v. Baird, 195 Kan. 134, 402 P. 2d 753, Syl. ¶ 2.)
The appellants claim their motion comes within an exception to the general rule, citing Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, Syl. ¶ 3. In the Pierce case a matter of due process was considered in this court as a ground for reversal of the judgment which had not been presented as an issue to the trial court.
We must conclude on the facts in the instant case that the point the appellants attempt to raise for the first time on appeal falls within the general rule and not within the exception considered in the Pierce case. It follows the motion to amend the statement of points must be denied.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen’s compensation case by the respondent and its insurance carrier from an order of the district court awarding compensation to the claimant in the sum of $3,744.30, in addition to compensation previously paid in the sum of $4,415.88 as a result of an accidental injury.
The primary question concerns the manner of computing compensation payable to the claimant on the facts in this case.
Theodore Cramer (claimant-appellee) was employed by Charles Whitacre, a subcontractor of Blankenship Painting and Decorating Company, and was working on the new Armour plant located at Emporia, Kansas. The claimant sustained injuries when he fell from a scaffold while painting on the 27th day of April, 1964, at the Armour plant. Medical attention was immediately sought from a doctor in Emporia, who on the same day referred him to a hospital in Topeka. He remained in the Topeka hospital for a period of twelve days and was treated by Dr. Joyce, who continued treating him until the 29th day of November, 1965.
On the 1st day of July, 1964, a hearing was held before Examiner Sabatini at Emporia, Kansas, with the claimant present. Thereafter on July 8, 1964, the claimant received an award for temporary total disability for a total of 415 weeks. The examiner found the claimant temporarily totally disabled. At the hearing the claimant testified he did not know the nature and extent of his injuries. On the 18th day of July, 1964, the workmens compensation director approved the award, and no appeal was taken from such award.
On the 23rd day of June, 1966, the respondent and its insurance carrier filed an application for review before Examiner Sabatini, and on the 17th day of August, 1966, Examiner Sabatini modified the award and found that the claimant was no longer temporarily totally disabled. He reserved ruling on permanent partial disability either to the scheduled member (claimant’s left foot) or to the body as a whole.
On the 24th day of April, 1967, some three years after the injury Examiner Turner, who replaced Examiner Sabatini, made an award of 10% permanent partial disability to the body as a whole. The result was an award of $810.96, due at that time, and a remainder of 259.71 weeks at the rate of $6.03 per week.
The respondent then filed an application for modification and review on the 3rd day of May, 1967, and on the 12th day of July, 1967, the director reversed Examiner Turner. The director ordered a total of $702.24 be paid to the claimant. The portion of the director’s order material to our discussion reads as follows:
“. . . The director finds that the claimant has not sustained the burden of proving he has suffered disability to any part of his body other than his foot, as a result of an accidental injury he suffered on April 27, 1964. It appears that it was approximately 121 weeks after the accident before the claimant first complained about any problem with his back. Although it is not unusual for a back injury to be slow in manifesting itself, the director finds that in the instant case claimant’s back problem is too remote in time to the date of the accident to have been caused thereby. Therefore the claimant’s disability as a result of said accident must be limited to his foot. The director finds that as a result of said accidental injury claimant suffered 119.29 weeks of temporary total disability, followed by 45% loss of use of the foot, and the award of the examiner should be modified to reflect these findings.
“It Is Therefore Ordered, Decreed and Adjudged That the award entered herein by Examiner Dan E. Turner on April 24, 1967, be and the same is hereby modified as follows: An award of compensation is hereby made in favor of the claimant, Theodore Cramer and against the respondent, Blankenship Painting and Decorating Company and its insurance carrier, Aetna Casualty and Surety Company, for 119.29 weeks of temporary total compensation at the rate of $42.00 per week, followed by a 45% loss of use of the foot, which amounts to 2.57 weeks of disability at the rate of $42.00 per week or the sum of $107.94. Respondent and insurance carrier have paid 105.14 weeks of temporary total disability, leaving a balance of temporary total disability compensation due and payable to be 14.15 weeks at the rate of $42.00 per week, or the sum of $594.30, making a grand total due and owing the claimant to be $702.24, which amount is ordered paid in a lump sum. In all other respects said award of April 24, 1967, is hereby affirmed.”
The foregoing decision of the director was appealed to the district court of Lyon County on the 28th day of July, 1967. After several hearings the district court ultimately entered its judgment on the 10th day of June, 1968, wherein it found the sum of $3,744.30 to be due the claimant. The court found the claimant suffered 119.29 weeks of temporary total disability followed by 60% partial disability of his left foot. Claimant’s average weekly wage was found to be $100.55. The court’s computation was based upon the following findings:
“5. The respondent and insurance carrier have paid 105.14 weeks of temporary total disability leaving a balance due and owing of 14.15 weeks at $42 per week or $594.30.
“6. The claimant is entitled to a 60 percent disability to his left foot which is computed to be 75 weeks at $42 per week or $3,150. This amount is now due and owing.”
Appeal was duly perfected to this court by the respondent and its insurance carrier on the 20th day of June, 1968, giving the following as their reasons for the appeal:
“The District Court erred in finding as a matter of law that claimant suffered 119.29 weeks of temporary total disability followed by 60 per cent partial disability to his left foot. The District Court further erred in finding as a matter of law that the claimant is entitled to a 60 per cent disability to his left foot which is computed to be 75 weeks at $42 per week or $3,150.00.”
The appellants take the position the record discloses the claimant’s injury was confined to a scheduled member of the body. They argue that the two doctors who treated the claimant (Dr. Joyce and Dr. Pusitz) both considered the claimant to have a temporary total dis ability of the left foot during the time of treatment. The appellants point out that these doctors gave the following disability to the left foot:
Dr. G. Remard Joyce — who treated the claimant from April 28, 1964, to November 29, 1965 — gave as of the latter date 50 to 60% permanent partial disability of the left foot.
Dr. M. E. Pusitz — who treated the claimaint from February 16, 1966, to August 13, 1966 — gave as of the latter date 30% permanent partial disability of the left foot.
Dr. Pusitz, who treated the claimant after Dr. Joyce, performed an additional operation and testified he was able to reduce the claimant’s disability to the left foot by reason thereof and by physical therapy. As to the left foot Dr. Pusitz discharged the claimant from treatment on August 13,1966.
Upon the foregoing evidence the appellants contend the claimant’s disability would be considerably less than the 60% figure as found by the district court, and it is urged the district court entered its decision contrary to the substantial evidence in the case. (Citing, Johnson v. General Motors Corporation, 199 Kan. 720, 724, 433 P. 2d 585.)
Actually, Dr. Pusitz saw the claimant again on September 10, 1966, for a condition of his low back. He further saw him on September 23, 1966, for his low back region. Inasmuch as the claimant did not perform any work while he was being treated by Dr. Joyce it appears from the record that his back did not bother him; that it was only after he attempted to resume employment that his back began to bother him. Dr. Pusitz made a final evaluation of the claimant’s injury, including the low back area, and gave the percent of claimant’s disability as follows:
“Regarding the back, there was a zero to 5% body disability. Regarding the left foot, there was a 30% disability. Now, in translating this to body disability, here in the State of Kansas, total loss of the foot is regarded as 30% of the body, so that he would have a 30% of thirty with reference to the body, which in my evaluation comes to 9% of the body. So that the total body disability, in rough figures, would be a minimum of 10% to a maximum of 15% of the body as a whole.”
The claim for compensation filed by the claimant on the 1st day of July, 1964, indicated that he sustained personal injuries from the accident as follows:
“Crushed heel, injury to both legs, injury to spine and all parts of the body affected thereby.”
The claimant’s testimony taken on the 8th day of March, 1967, discloses that he called the nurse’s attention to his back when he came into the Topeka hospital, and she informed him it was bruised. He further testified he was given some shots for pain; that he did not resume work until July, 1966; that his foot would swell up and his back bother him as a result of such work; and that his back bothered him more when he was working.
The appellants, in effect, are seeking to have this court review questions of fact. Under K. S. A. 44-556 a party is entitled to appeal to the Supreme Court in workmen’s compensation proceedings on questions of law only. (Shepherd v. Gas Service Co., 186 Kan. 699, 352 P. 2d 48.)
In Reed v. Clay Center Concrete & Sand Co., 184 Kan. 374, 336 P. 2d 405, it was said:
“The determinative question in this case is whether there was any evidence to support the findings of the trial court that claimant sustained bodily injury-outside and beyond the specific injury to the leg. Respondent concedes the elementary rule of law that this court is not concerned with disputed questions of fact, and that if there is any evidence to support the findings and award of the district court in a workmens compensation appeal, then this court will affirm the lower court’s findings and judgment. ...” (pp. 374, 375.)
The trial court took into consideration the testimony of the claimant together with the expert testimony of the medical doctors in making the findings which the appellants challenge. While the medical testimony standing alone may have warranted a finding that claimant’s injury was confined to his left foot, when such testimony is considered with the claimant’s testimony the evidence is sufficient to support the findings made by the trial court. Viewed in this light the record contains substantial competent evidence to sustain the findings. (Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205.)
After a careful review of the record we hold it contains substantial competent evidence to support the trial court’s findings that the claimant suffered 119.29 weeks of temporary total disability, followed by 60% permanent partial disability of the left foot.
Did the trial court err in computing the 60% permanent partial disability to the claimant’s left foot?
In making its decision the district court allowed the claimant a total of 119.29 weeks of temporary total disability plus 60% of 125 weeks.
Statutory provisions under the workmens compensation act applicable hereto relating to the disability of a workman resulting from injury to a foot are:
K. S. A. 44-510 (3) (c) (14) which reads:
“For the loss of a foot, sixty percent (60%) of the average weekly wages during one hundred twenty-five (125) weeks.”
K. S. A. 44-510 (3) (c) (21) which reads:
“. . . For the permanent partial loss of the use of a . . . foot . . . compensation shall be paid at sixty percent (60%) of the average weekly wages, not in excess of forty-two dollars ($42) per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such . . . foot . . . which partial loss thereof bears to the total loss of a ... foot . . . but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . foot . . . exclusive of the healing period.”
On this point the appellants’ only challenge is whether the scheduled award runs in addition to the temporary benefit.
It is argued the district court did not compute the disability in accordance with the provisions of K. A. R., Rule No. 51-7-8. It reads in part:
“In case of an injury to a scheduled member wherein the workman sustains a period of temporary total disability followed by a percentage of permanent partial loss of use of such member, the rule of the director is that the period of compensable total disability is to be accounted for first, then that time deducted from the scheduled period and the percentage of this remaining time taken as the period of time payment of compensation is to be made.” (p. 1385.)
Applying the foregoing rule to the instant case, the appellants argue that claimant’s temporary total disability of 119.29 weeks must be deducted from the 125 weeks provided in the schedule for the total loss of the foot, leaving 5.71 weeks. Appellants further argue, assuming the permanent partial loss of the use of the left foot to be 45%, this percentage is taken of 5.71 weeks, giving 2.57 weeks, and for this 2.57 weeks compensation is owing at the full rate, making in all 121.86 weeks compensation to be paid.
We fail to see merit in the appellants’ argument on the facts in the instant case.
The appellants concede the claimant was temporarily totally disabled from April 27, 1964, until August 17, 1966, because they requested a review and modification on June 23, 1966, and received a modification of the award on August 17, 1966. No review by the director was ever requested as to the examiner’s finding that the claimant was temporarily totally disabled.
Under the review and modification section of the workmen’s compensation act here applicable, K. S. A. 44-528, an award of compensation provided for in the schedule of specific injuries as set forth in K. S. A. 44-510 is specifically excluded. In other words, had the initial award for temporary total disability been for a scheduled member, as the appellants now argue, there would have been no modification and review. Here no complaint was made of the initial award for temporary total disability for some two years. Therefore, the appellants cannot now be heard to complain.
The foregoing rule relied upon by the appellants (K. A. R., Rule No. 51-7-8) does not apply to the instant case for the simple reason that there was no award for temporary total loss of the use of a scheduled member. The award of July 8, 1964, was for temporary total disability.
A case directly in point is Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429. In Syllabus ¶1 the court there held:
“A coal miner who was totally disabled for six months because of injuries received in his employer’s coal mine, by which time he had recovered from all his injuries except as to his left foot which had been rendered permanently useless, was entitled to six months’ compensation for total disability and likewise entitled to the statutory schedule of 60 per cent of his weekly wages for 125 weeks for the total loss of the use of his left foot.”
There the claimant injured both feet, but the right one recovered and the left foot did not. In the opinion the court said:
“. . . Apparently the trial court held the view that plaintiff was not entitled to compensation for his temporary total incapacity, and that the only award he was entitled to was for the permanently continuing injury to his left foot. The trial court was within its jurisdictional privilege to determine for itself from the evidence in the record that the left foot was permanently and completely rendered useless. That fact being ascertained, the statutory schedule of 125 weeks’ compensation should be allowed therefor. But the court erred in deducting therefrom the entire 88 weeks’ payments which had been made to plaintiff. For six months plaintiff was totally incapacitated because of his injuries. There is no dispute about that fact. He was entitled to compensation therefor. . . .” (p. 808.)
The Resnar case was affirmed in Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684.
On the facts in this case the trial court properly allowed compensation for the permanent partial disability of the scheduled member, in addition to the temporary total disability awarded.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is a habeas corpus proceeding. The trial court denied relief and the petitioners, Yurk and Brady, have appealed.
The facts, so far as relevant, are not complicated and can be stated briefly. On December 11, 1967, three men held up and robbed a grocery store in Kansas City, Kansas. The following evening, Yurk, Brady and a third man were taken into custody in Kansas City, Missouri, by police officers of that city. On December 13, 1967, a complaint was filed in the Magistrate Court of Wyandotte County, Kansas, charging the three men with the Kansas robbery and a warrant was issued for their arrest. The next day, December 14, 1967, Yurk and Brady executed written waivers of extradition and were turned to Kansas authorities.
A preliminary hearing was held on December 28, 1967, at which petitioners were represented by counsel and evidence was intro duced. The petitioners were bound over to district court for trial and thereafter, on January 16, 1968, instituted the present action. After an answer was filed, an evidentiary hearing was held before Judge Claflin and, as previously related, relief was denied.
In essence, the main issue raised on appeal is this: that the district court lacked jurisdiction over the petitioners because they had been threatened and coerced into waiving extradition.
On this point, Yurk and Brady both testified they were told, in effect, by Kansas City, Missouri police officers, that unless they executed waivers of extradition, they would be turned loose, apparently on the way to Magistrate Court, and then would be shot down on the pretext they had attempted to escape. Their testimony, however, was wholly uncorroborated and thus was insufficient to justify the granting of relief by means of habeas corpus. In Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922, this court said:
“Again and again this court has held that a writ of habeas corpus will not be allowed on the uncorroborated and unsupported statements of the petitioner. (See Cochran v. Amrine, 153 Kan. 777, 113 P. 2d 1048, and Wooner v. Amrine, 154 Kan. 211, 117 P. 2d 608.) . . .” (p. 379.)
We have consistently adhered to this rule. Among our more recent cases, the inquisitive reader may refer to Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; Stebens v. Hand, 182 Kan. 304, 309, 320 P. 2d 790; McGee v. Crouse, 190 Kan. 615, 617, 376 P. 2d 792; Williams v. Crouse, 193 Kan. 526, 530, 394 P. 2d 96.
Moreover, the means by which the presence of an accused has been secured in this state does not affect the jurisdiction of the appropriate district court to try him. This principle has long been established in Kansas and represents the majority view in this country. In the case of State v. Wellman, 102 Kan. 503, 508, 170 Pac. 1052, the court said that the jurisdiction of a district court to try a person charged with the commission of an offense does not depend upon how he came to be within this state. In a more recent case, State v. Wharton, 194 Kan. 694, 401 P. 2d 906, we held:
“Jurisdiction of the person in a criminal action is not affected by the way it is acquired.” (Syl. ¶[ 2.)
Among other cases of like import, see Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224; State v. Cook, 194 Kan. 495, 399 P. 2d 835; Call v. State, 195 Kan. 688, 408 P. 2d 668; Thompson v. State, 197 Kan. 630, 419 P. 2d 891; and Williams v. State, 197 Kan. 708, 421 P. 2d 194.
The appellants refer to an annotation in 165 A. L. R. 947, et seq., wherein it is said that Kansas favors the minority view, i. e., that the right to try an accused is impaired when he has been brought into the state by violence. This somewhat startling revelation is predicated on the early case of State v. Simmons, 39 Kan. 262, 18 Pac. 177. However, by 1965 the Simmons case had become so watered down throughout years of refinement and explanation that in State v. Wharton, supra, this court took final leave therefrom. In Wharton, wherein the defendant’s return to Kansas was said to have been accomplished by forcible means, this court forthrightly applied the majority rule, which actually had been followed ever since the Wellman case in 1918, and then went on to say:
“State v. Simmons, supra, relied on by defendant, was a proceedings in contempt and foreign to the facts in the instant case. It has no application, and anything said therein which conflicts with the views herein expressed is disapproved.” (p. 696.)
A second point briefed by the petitioners concerns the right to counsel of an accused who is confronted with extradition proceedings. The state of Missouri, it would appear, has adopted provisions of the Uniform Criminal Extradition Act, and the petitioners cite 39 V. A. M. S. § 548.101 in support of their position. This statute substantially provides that no person arrested upon a governor’s warrant shall be handed over to the designated agent of a demanding state unless he shall first be taken before a judge of a court of record who shall inform him of the demand made, the crime charged and his right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of the arrest, the judge shall allow a reasonable time to apply for a writ of habeas corpus.
An additional Missouri statute not cited by the appellants, 39 V. A. M. S. § 548.260, further provides, in essence, that a person arrested in that state charged with having committed a crime in another state may waive the issuance of a governor’s warrant, and all other procedure incident to extradition, by executing a written waiver in the presence of a judge of a court of record agreeing to return to the demanding state, provided the judge first informs him of his right to the issuance of a governor’s warrant and his right to obtain a writ of habeas corpus.
We believe the record establishes full compliance with both Missouri statutes despite assertions by the petitioners that they were not advised of their right to counsel. The waiver signed by Yurk expressly recites he had been informed he could have counsel, but had declined the same, and that he had been advised of his legal rights under Missouri laws. The same recitations appear in Rrady’s signed waiver, and the waivers of both men are shown executed before a judge of a court of record. We entertain no doubt that both gentlemen were fully apprised by the magistrate of their legal rights. It is to be presumed that public officers will faithfully perform the duties imposed on them by law. (Call v. State, supra; Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989; Robinson v. State, 198 Kan. 543, 426 P. 2d 95.)
It is intimated, although the point is not briefed, that prejudice resulted to the rights of these petitioners by reason of in-custody interrogation and line-ups conducted by Kansas City, Missouri police officers in the absence of counsel for the accused. The suggestion is without merit. When this petition was filed, and when it was heard, the petitioners were being held, not on Missouri process, but on process issued by Kansas Courts, concerning which no complaint is lodged. Moreover the petitioners had been accorded preliminary examination and had been bound over for and were awaiting trial.
The trial itself, however, had not been held. If we were to assume that incriminating admissions had been obtained from the petitioners by Missouri police officers, or that identifications had been made at the Kansas City jail, even though there is not a shred of evidence to such effect, neither such admissions nor such identifications have been used to petitioners’ prejudice at their trials, for their trials had not yet been held. The “fruit of the poison tree” doctrine is simply not applicable to the circumstances of this case. (State v. Dobney, 199 Kan. 449, 429 P. 2d 928.)
No error having been shown committed in the court below, the judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant was convicted by a jury of the offense of burglary in the second degree. Five previous felony convictions being shown, he was sentenced to imprisonment for a term of fifteen years to life. He appeals from that judgment and sentence.
Appellant has been represented at all stages of this proceeding by court-appointed counsel. His first specification of error pertains to appointment of the attorney who represented him at trial level.
By way of background we should state that in Reno county, as well as in many of our counties, it has been customary for a judge of the judicial district to appoint attorneys to represent indigent accused at proceedings in magistrate court. This was done in appellant’s case. On February 26, 1967, the following occurred in district court:
“The Court: You are Asberry Walker?
“The Defendant: Yes.
“The Court: What is your age, Mr. Walker?
“The Defendant: Thirty-six.
“The Court: On February the 21st you were before the Court and you asked me to appoint counsel to assist you in your defense of this case which has been brought against you by the State charging you with breaking and entering a dwelling house in the nighttime, do you recall that?
“The Defendant: Yes.
“The Court: At that time I appointed Mr. Aubrey Earhart to represent you.
“The Defendant: Yes.
“The Court: Mr. Earhart has been to see you, is that true?
“The Defendant: Yes.
“The Court: And he tells me that you have some objection to him representing you, is that true?
“The Defendant: Yes.
“The Court: What is your trouble?
“The Defendant: Well, it seems like his impression is that I am guilty and he doesn’t want to give me proper defense in this case, and I feel I should have at least someone who will try to help me.
“The Court: I might tell you, Mr. Walker, that Mr. Earhart has been a member of this bar for twenty years and is a good, experienced attorney, and it is not for you to pick and choose, and I am making Mr. Earhart available to you if you want to use his services. He is competent, and you are not going to pick and choose among the bar, do you understand that?
“The Defendant: Yes.
“The Court: He will be available for you at your preliminary hearing, and if you desire to use his services you will be permitted to do so. We can’t force you to use an attorney’s services; however, we do make them available to you and we have made them available to you and Mr. Earhart will be able to advise with you prior to the preliminary hearing.
“The Defendant: In other words, I have to take him or none at all.
“The Court: That is about right.
“Mr. Earhart: Do you want me?
“The Defendant: Like you were talking to me awhile ago, I don’t want to talk to you.
“The Court: Do you want to talk to Mr. Earhart?
“The Defendant: I will sit and listen to him.
“Mr. Earhart: I will be up this afternoon.
“The Court: That will be all.”
Thereafter, on February 28, 1967, preliminary hearing was held. Trial in district court commenced June 5, 1967, and was concluded by sentencing on June 26, 1967, with Mr. Earhart acting as appellant’s attorney throughout. The matter of his appointment or representation was not alluded to or brought to the attention of the trial court in any way after the February 26th proceeding.
Appellant now asserts “The trial court erred in requiring the defendant to accept counsel appointed by the court after having been advised by the defendant that counsel was not interested in his case and that counsel thought the defendant was guilty.”
Appellant’s charge of error is directed only at the court’s action of February 26, 1967, reflected in the proceedings quoted. He does not contend the attorney was unfaithful or derelict in the discharge of any duty to appellant and he does not charge incompetent service. The record does not disclose any such dereliction, either at preliminary examination or in the attorney’s subsequent representation. Appellant argues that at the February 26th hearing he was dissatisfied with Mr. Earhart but, on the other hand, he did not want to be without counsel. We think his statement at that hearing can fairly be interpreted as a request for the services of another attorney.
Did the court err in its ruling? There can be no question, of course, as to entitlement to counsel. The nature of the right was recently discussed in Ray v. State, 202 Kan. 144, 446 P. 2d 762, in which this court stated the right is not a matter of mere form, but one of substance; that it contemplates the guidance of a responsible, capable lawyer devoted to his client’s interests.
This right, however, is not wholly unrestrained. An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court (Tibbett v. Hand, 294 F. 2d 68 [C. A. 10]). Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its dis cretion, to decide. (United States v. Burkeen, 335 F. 2d 241 [C. A. 6]). Here appellant gave as his reason for dissatisfaction his counsel’s “impression” that he was guilty and that counsel didn’t want to give him “proper defense.” The matter was not further elaborated at this proceeding, which occurred prior to preliminary examination, and was not raised upon counsel’s reappointment to represent appellant in the trial in district court, or at any time thereafter until this appeal. From the showing made we cannot discern the nature of any disagreement between appellant and his counsel. Counsel made no request to be relieved of the appointment, as professional integrity would have required in the event of serious disagreement in the conduct of the defense. Under the circumstances shown we find no abuse of discretion in the trial court’s ruling of February 26th. Appellant did not plead guilty (as conceivably his attorney may have suggested), he pleaded not guilty and was afforded a defense by his counsel which so far as we can tell was adequate, though unsuccessful. We find nothing in the record from which it can be said the ruling complained of substantially prejudiced appellant’s rights.
We briefly narrate the evidence offered at trial. For the state it was shown that a home eight miles southwest of Hutchinson, in Reno county, was burglarized on November 4, 1966, between the hours of 7:30 p. m. and 10:30 p. m. Certain cooking utensils and wrapped packages of dimes were stolen. On November 29, 1966, pursuant to a search warrant, police officers found some of the stolen utensils and the wrapped dimes at appellant’s apartment in Newton, Harvey county, Kansas. Also pursuant to search warrant executed on the same day, a butcher knife, likewise identified as taken at the time of the burglary, was found at the home of appellant’s aunt in Newton. Appellant’s aunt stated she had received the knife from appellant.
Appellant did not testify but on his behalf his aunt testified that on November 4, 1966, (the night of the burglary) she was in appellant’s company; she and appellant left Newton in his car at about 7:00 p. m. and went to Wichita to check on some drapes which had been advertised for sale; they stopped for coffee at a Wichita cafe going and coming and returned to Newton about 10:30 p. m.; she never mentioned this trip when she talked to the investigating officers or at the preliminary hearing because no one asked her; she further testified that on November 8, 1966, she was at the same cafe in company with appellant; that a person named Ronald Lowrey came in and told appellant he had some cookware and other things he had bought at a garage sale which he wanted appellant to keep for him because appellant had a bigger apartment that he did; she knew that later certain utensils were at appellant’s apartment.
Appellant contends the trial court erred in receiving in evidence the items seized at appellant’s apartment because the warrants were not constitutionally specific as to the premises to be searched or the property to be seized. As to the latter, the affidavit for the search warrant and the search warrant described the property to be seized as “cooking utensils,” which we think was sufficient. Other articles of personal property were mentioned in the search warrant. In this connection we note the definite indication in the record that appellant was suspected of committing other burglaries in which recovery of stolen property was also being sought.
The affidavit and the warrant for the search of appellant’s apartment described the premises to be searched as “118 S. Kansas Avenue, Newton, Kansas,” without mention of appellant’s name. Appellant contends this description was impermissibly overbroad because the property at 118 South Kansas Avenue was a four-family apartment building. The state does not concede the truth of this statement but responds the record upon appeal is barren of any evidence the address in question was in fact a multiple family dwelling and we find no such evidence. At trial level the search warrants were not challenged in any way. Consequently, the record contains little pertaining to their issuance and execution.
The search warrant for appellant’s apartment was regular on its face and its validity will be presumed (State v. Emory, 193 Kan. 52, 391 P. 2d 1013). We will not consider an issue upon appeal where its existence depends upon facts which do not appear in the record as submitted to us (see 4 Am. Jur. 2d, Appeal and Error, § 491).
Appellant complains the items seized by the officers should not have been received in evidence because the seizing officers did not immediately place their identifying mark on the objects. The point is frivolous. From the time of seizure the officers kept the items in their continuous custody inside their locked sheriff’s automobile until they were marked the following day and deposited in the evidence locker at Hutchinson. The items were identified as property taken in the burglary. Proper foundation for their reception in evidence was shown.
Appellant asserts insufficiency of evidence to convict him, arguing mere possession of recently stolen goods is not enough when accompanied by such a reasonable explanation as he offered. In State v. Rice, 93 Kan. 589, 144 Pac. 1016, the defendant was convicted of burglary. In denying his appeal this court said:
“The first contention is that the possession of recently stolen goods without other criminating circumstances showing guilt is insufficient as a matter of law to sustain a conviction of burglary. It is insisted that in the present case there are no criminating circumstances indicating guilt, and nothing in the evidence to connect appellant with the crime, save and except the possession of the goods; that his explanation, which the jury rejected, even if unsatisfactory, could not put him in a worse position than no explanation at all. The authorities cited by the appellant hardly sustain his contention. In fact, they are in accord with the well-settled rule that the possession by the accused of property recently stolen on the occasion of a burglary is sufficient to sustain a conviction of burglary where a satisfactory explanation is not given. . . . [p. 591]
“Other authorities cited by counsel go no further than to hold that whether or not the explanation is a reasonable one is a question for the jury to determine.” (p. 592.)
After discussing the arguments and authorities presented the court continued:
“The precise question is whether the recent possession of property stolen in a burglary, together with criminating circumstances, including the failure of the appellant to make a satisfactory explanation of his possession of the property, is sufficient to sustain a conviction. In our opinion the great weight of authority as well as of sound reason supports the rule that the possession of the accused of recently stolen property is sufficient to sustain a conviction of burglary where satisfactory explanation is not given.” (pp. 593, 594.)
This court has consistently adhered to this rule (see State v. Peterson, 198 Kan. 239, 424 P. 2d 552).
Here, there was evidence of the breaking and the theft of property from its owner, its identification as such, and its recent possession by appellant. Unfortunately for him, the jury rejected his explanation for his possession, as it was entitled to do, and this is sufficient to sustain the conviction.
Appellant next complains the trial court did not give the jury a specific instruction on the defense of alibi. Although appellant did not furnish the advance statutory notice of intention to prove an alibi (K. S. A. 62-1341) he was permitted to offer this character of evidence through his aunt. At trial no request was made for any instruction touching upon the defense of alibi. General instructions were given. Appellant’s evidence offered to establish his presence elsewhere than at the scene of the crime during the time it had to be committed was simple and easily understandable, and we think he suffered no prejudice in the failure to give a more specific instruction thereon. The applicable rule is found in State v. McKimson, 119 Kan. 658, 240 Pac. 567, as follows:
“An omission to give a special instruction concerning the defense of alibi where none was requested by the defendant is not a ground for reversal where full general instructions covering the law of the case were given.” (Syl. f 3.)
Finally, appellant contends he was improperly sentenced under the habitual criminal act because there was no showing the previous convictions offered by the state at the time of his sentencing were in fact convictions of felony. The contention is without merit. The convictions were evidenced by authenticated records thereof, two in the United States District Court for the Northern District of Mississippi, and three in the circuit court of the first judicial district of Heins county, Mississippi. The federal convictions were for unlawful entry of a banking institution insured by the Federal Deposit Insurance Corporation, and the state convictions were for burglary and larceny, all of which, under applicable law, were felonies.
The judgment and sentence are affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order of the district court dismissing an action to enjoin the defendants from enforcing and carrying out an order of the Director of Property Valuation of the State of Kansas for lack of jurisdiction.
Plaintiffs are owners of respective interests in certain gas producing properties located in Stevens County, Kansas, which properties were subject to assessment and taxation for 1967 ad valorem tax purposes.
Plaintiffs individually made due and timely 1967 ad valorem tax renditions to the acting county assessor of Stevens County, covering their respective gas producing properties. The renditions were examined and adjusted by the acting county assessor and subsequently were re-examined and readjusted by the Board of County Commissioners of Stevens County sitting as the County Board of Equalization. In May, 1967, the Stevens County Board of Equalization, by its order, fixed and determined the assessed valuations on plaintiffs’ respective gas producing properties for 1967 ad valorem tax proposes. Plaintiffs did not commence any proceedings before the State Board of Tax Appeals sitting as the State Board of Equalization with regard to the assessed valuations as thus fixed and determined by the Stevens County Board of Equalization.
The county clerk applied the levies certified to her to the assessed valutions of plaintiffs’ gas producing properties, computed the 1967 ad valorem taxes to be levied on the properties, set the tax so computed on the tax rolls and delivered the tax rolls to the county treasurer. On or about November 1, 1967, the county treasurer billed the individual plaintiffs for their 1967 ad valorem taxes and thereafter full payments were made of the first half thereof which were received and accepted by the county treasurer.
On December 15, 1967, defendant Ronald F. Dwyer, Director of Property Valuation of the State of Kansas, issued an order directed to the defendant, Sarah Etta Medcalf Reynolds, as County Clerk of Stevens County. The order cited as its authority K. S. A. 79-1404, Sixteenth, and ordered the county clerk: (1) to recompute the valuation of all gas producing properties in Stevens County on the basis of the “state prescribed Gas Schedule,” (2) to assess an added 1967 tax on the difference between the existing and the recomputed valuations, (3) to notify the Stevens County Treasurer of the amount of the added tax, and (4) to direct the treasurer to impound the additional money for use in reducing 1968 levies.
On March 5, 1968, plaintiffs filed this action in the district court of Stevens County, Kansas, seeking to enjoin enforcement of and compliance with the above described order. Timely answers were filed by all the defendants and on March 28, 1968, the matter was heard on the merits, argued and taken under advisement by the court.
On April 8, 1968, the district court, on his own motion, entered an order dismissing the action on the ground that the court lacked jurisdiction over the subject matter thereof.
A single question is presented on appeal — did the trial court err in holding that it did not have jurisdiction of the subject matter and in dismissing the action?
The plaintiffs invoked the jurisdiction of the district court under the provisions of K. S. A. 60-907, which provides in part:
“Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.”
The petition takes three printed pages to allege why the order is “unconstitutional, unlawful, unreasonable, arbitrary, capricious, oppressive, unreasonably discriminatory and otherwise is absolutely void and of no effect.” Highly summarized it is alleged that the order is contrary to and not in compliance with K. S. A. 79-1404 in six particulars which are fully set out in the petition. It is further alleged in detail that the statute does not authorize an added tax; there cannot be an increase in the assessed valuation of taxable property without a corresponding increase in the county’s tax levy; there cannot be an increase in the assessed valuation of taxable property in one year and the increase applied to reduction of tax levies in the county in a subsequent year, and the Director of Property Valuation has pretended to usurp and assume power and authority not granted to him by statute.
It would appear that the petition sufficiently alleged an unauthorized act resulting in an illegal levy to bring the action within the provisions of K. S. A. 60-907 (a) and thus give to the district court jurisdiction to determine the issues raised.
At this point it will be definitely understood that we are not passing on the merits of the controversy. The questions on the merits have not been briefed and are not before us. We are only considering the sufficiency of the allegations of the petition to give the court jurisdiction on the basis of alleged illegal acts resulting in an alleged illegal levy.
The trial court stated its reason for dismissing the action:
“If . . . [Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982], the District Court lacks jurisdiction to lower valuations on certain properties (based upon the Court’s interpretation of the facts) to coincide with valuations on other properties set by the Director of Property Valuation and upheld by the State Board of Tax appeals, then surely the reverse is true. Thus, The District Court would lack jurisdiction to raise valuations to coincide with those set by the Board of Property Valuations or to otherwise interfere with assessment of these properties.”
We submit that the able trial judge misconstrued the purpose of the action. He was neither asked to raise valuations nor to lower them. He was asked to determine the validity of an order of the Director of Property Valuation which required the local county officials to change the assessed valuation which resulted in an alleged illegal levy and if he found the order to be illegal to enjoin its enforcement. There is much difference between enjoining an order of assessment illegally brought about than enjoining an assessment based on the discretion of the assessing authorities. If a taxpayer believes that an order of assessment is illegally determined resulting in an illegal levy he has a right to have the question determined by a court of competent jurisdiction.
The question before us has been considered in four recent cases.
In Hurley v. Board of County Commissioners, 188 Kan, 60, 360 P. 2d 1110, we held drat, under G. S. 1949, 60-1121, a statute similar to K. S. A. 60-907 (a), a special assessment on certain property was illegal and void because the finding of equal benefit was contrary to fact resulting in arbitrary and unwarranted exercise and abuse of power.
In Schulenberg v. City of Reading, 196 Kan. 43, 410 P. 2d 324, this court directed injunctive relief against a special assessment for a sewer district, stating in the opinion:
“. . . The general import of plaintiffs’ allegations is that the sewer district, as created, was utilized as a device to enable the city to load large assessments against the property of the school districts and thereby have the plaintiffs’ property outside the corporate limits actually finance the construction of the sewer within the city and to require the plaintiffs to pay for what should lawfully be assessed against persons owning property within the corporate limits.
“These allegations, if not expressly alleging fraud, allege conduct so oppres sive, arbitrary, unlawful and capricious as amounting to fraud, and permit the plaintiffs to inquire into the legality of the creation of the sewer district and whether the city was authorized under the statute to create the sewer district in the manner it did and levy special assessments against lots and pieces of ground within the sewer district.” (p. 54.)
In Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982, we stated in the syllabus:
“Where a petition in a private taxpayer action seeks merely to reduce taxes by a mandatory injunction because the State Board of Tax Appeals changed the valuation on other property in the county, the petition fails to allege the ‘illegal levy of any tax, charge or assessment’ (K. S. A. 60-907 [a]), and discloses on its face that the district court has no jurisdiction in the matter.
“The expression, ‘illegal levy of any tax, charge or assessment,’ contained in K. S. A. 60-907 (a), and its predecessors, has reference to action of an administrative official or hoard taken without authority, or to action taken by an administrative official or board which is permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of any tax, charge or assessment.” (Syl. ¶¶ 9 and 10. Emphasis supplied.)
It will be noted that the petition before us alleges the action was taken without authority.
In Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5, it was shown on the face of the petition that the taxing officials were acting under legislative fiat and therefore the court was without jurisdiction to grant relief. However, we stated in the opinion:
“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 Comrs., 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.
“A review of our cases forces us to conclude that ‘the illegal levy of any tax, charge or assessment’ as used in K. S. A. 60-907 (a) has reference to the action of an administrative official or board taken without authority or action of an administrative official or board which is permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of any tax charge or assessment. There being absent here any semblance of such misconduct the district court was without power or authority to grant the relief prayed for.” (pp. 594-596.)
We are forced to conclude that the petition raised a question of illegal tax levy because the taxing authorities were allegedly proceeding contrary to statute and the trial court had authority to determine the issue under K. S. A. 60-907 (a).
The judgment is reversed with instructions to the trial court to determine the issues raised by the pleadings on their merits.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from a receivership proceeding in the Sedgwick district court in which the claim of the appellant was allowed in part only.
On August 9, 1966, the appellant, S & B Oil Well Services, Inc., hereafter referred to as Well Services, commenced an action in the Butler district court against Consolidated Petroleum, Inc., hereafter referred to as Consolidated, upon a series of written contracts whereby the appellant furnished certain oil well services to Consolidated for which it refused to pay. Consolidated retained an attorney who entered his appearance in the action, and in due course judgment was rendered in favor of Well Services and against Consolidated as prayed for in the petition, to-wit:
“[I]n the sum of One Thousand Nine Hundred Fifty-Eight Dollars Three Cents ($1,958.03) together with interest thereon at the rate of eight percent (8%) per annum from and after June 1, 1964, until paid,” (emphasis supplied).
together with the costs of the action.
Subsequently, and on a date not disclosed by the record, Sylvanus G. Felix commenced the action out of which this appeal arises, in the Sedgwick district court to recover the sum of $257,075.65 from Consolidated, and sought the appointment of a receiver.
On January 25, 1967, the district court found that Consolidated was indebted to various creditors and was financially unable to pay its indebtedness as the same became due and payable and that a receiver should be appointed to administer its assets under order of the court. On that date, a receiver was appointed and required to give notice of his appointment so as to permit all creditors, secured or otherwise, to intervene by filing their claims in the action.
On June 20, 1967, Well Services timely intervened in the receivership proceedings and filed its verified claim based on the judgment rendered in the Butler district court against Consolidated in the sum of $1,958.03 together with interest thereon at the rate of eight percent per annum from June 1, 1964, until paid, and the court costs in that action in the sum of $19.33. A certified copy of the journal entry of judgment was attached to the claim and marked Exhibit A.
On July 13, 1967, a hearing was had in the receivership proceedings. The court received the report of the receiver and found there was on hand the sum of $6,665.74, being the proceeds of the oil runs from the Groth Lease owned by Consolidated, less monthly operating expenses, and that “there has been filed the following ununsecured creditors’ claims, which should be allowed as fled . . .” (Emphasis supplied.) The court’s order then listed nine so-called “trade creditors,” including Well Services whose claim was allowed in the sum of $1,977.36, being the principal amount of the Butler district court judgment plus court costs in the sum of $19.33. The court further found the receiver should continue to operate the Groth Lease, and out of the proceeds to pay first all claims under $50 which had been filed and allowed, and thereafter pay all remaining claims filed and allowed on a pro rata basis except the claim of Sylvanus G. Felix whose claim was distinguished from the other unsecured trade creditors by reason of his equity interest in Consolidated. The pro rata payments were directed to be made to the creditors at intervals of not less than three months nor more than six months. The order recited that upon payment in full of the trade creditors, the court would, upon report of the receiver, entertain further directions. The order then stated:
“It Is Further Ordered, Adjudged and Decreed that the unsecured claims which have heretofore been allowed shall be subject to payment out of the proceeds coming into the hands of the receiver in the following order, to-wit:
“1. All claims under $50.00 in full forthwith.
“2. All remaining unsecured claims which have been allowed, except the claim of Sylvanus G. Felix, on a pro rata basis at intervals of not less than three months nor more than six months.
“3. The claim of Sylvanus G. Felix.
“The receiver is to report to the Court at such time as all claims except for the claim of Sylvanus G. Felix have been paid in full, at which time the Court will set this matter for hearing for the purpose of determining further directions for this receivership.”
Subsequently, the receiver sent Well Services a check in partial payment of its claim, together with a letter which advised that its claim had not been allowed in full as filed, and that interest was not allowed. Counsel for Well Services, considering the Sedgwick district courts journal entry unclear and ambiguous as to whether interest had been allowed in accordance with the Butler district court’s judgment, filed a motion asking the court for clarification of of the journal entry.
On September 22, 1967, the district court modified its judgment by striking out the words “as filed,” heretofore emphasized, and stated that the purpose of the modification was to exclude interest due Well Services pursuant to the Butler district court judgment. Hence, this appeal.
Pursuant to Well Services’ claim and the terms of the Butler district court judgment, it was entitled to interest at the rate of eight percent per annum from June 1, 1964, until paid. Its claim was the only one of that class, and we are of the opinion the district court erred in failing to allow interest thereon at least until January 25, 1967, the date the receiver took possession and control of Consolidated’s assets. The question presented was decided in Emerald Inv. Co. v. Harwi Hardware Co., 145 Kan. 31, 64 P. 2d 16, and it was held:
“In insolvency proceedings, when the assets are insufficient to pay claims to creditors in full, the general rule is that interest is not allowed upon such claims after the court takes possession of the assets.
“In insolvency proceedings, when the assets are more than sufficient to pay all claims in full, creditors usually are entitled to interest on their claims until payment is made.
“In insolvency proceedings, a creditor who might have collected interest until he was paid may waive interest pending the proceeding, or may lose his right to collect such interest by failure to make proper or timely application therefor.” (Syl. Iff 1, 2, 3.)
In that case, the district court allowed interest on all claims up to and including the date the receiver took possession of the assets of the debtor corporation. The receiver efficiently conducted the hardware business under the order of the court and made partial payments upon the claims allowed. Later, he had sufficient funds to pay the balance due on all claims allowed and sent checks marked “payment in full,” and sought his discharge. The creditors there involved sought payment of interest pending the proceedings, but they failed to make timely objection to the court’s order allowing interest on their claims only to the date of appointment of the receiver. Upon appeal, this court held that the creditors were entitled to interest up to and including the date the receiver took possession of the assets of the debtor corporation, but not subsequent thereto in the absence of a claim therefor, and in the opinion it was said:
“The general rule in insolvency proceedings, such as receiverships, bankruptcy, assignments for benefit of creditors, and the like is to allow interest on the claims of creditors only to a fixed date, as the date the court took charge of the assets. This is founded on the fact that in the great majority of such cases the assets of the estate are insufficient to pay the claims of all creditors in full. In such cases, to allow interest pending the insolvency proceedings to some creditors and not to others, or at different rates to different creditors, would result in an inequitable distribution among creditors of the assets which passed into the possession of the court. It would also complicate the procedure, tend to increase the expense, and delay closing the proceedings; hence, courts of equity in such cases quite uniformly decline to allow interest pending the insolvency proceedings. In the comparatively few insolvency proceedings in which the assets prove to be more than sufficient to pay all claims in full, including interest pending the proceedings, generally speaking, the creditors are entitled to interest on their claims until paid in full; provided, of course, their claims are of an interest-bearing character. Whether that is done, however, is governed by equitable principles; that is to say, if interest can be paid pending the proceedings on all claims of the same class, if timely application is made therefor, if there has been no waiver thereof, and if no other just reason appears to defeat such recovery. . . .” (1. c. 33, 34.)
The record indicates that most, if not all, of the trade creditors, other than Well Services, failed to demand interest on their claims. Well Services’ claim and its judgment was for interest from the date indicated until paid. The interest was as much a part of the whole of the judgment as was the principal amount due, and it was entitled to be allowed interest thereon until the date the receiver took possession of Consolidated’s assets.
Whether the main asset of Consolidated, a producing oil well, will produce sufficient income to permit payment in full of all the claims of the trade creditors, cannot be ascertained at this time. However, in the event the receiver is prepared to pay the balance due on all first and second class claims allowed in the court’s order of July 13, 1967, under the legal and equitable principles set out above, interest pending the proceedings may properly be allowed if, and when, Well Services’ claim is paid in full.
The judgment is reversed with directions to allow Well Services’ claim with interest up to and including the time the receiver took possession of Consolidated’s assets, and, in the event those assets are sufficient to pay in full the first and second class claims allowed by the court, that interest be paid on its claim in accordance with the views expressed herein.
It is so ordered. | [
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The opinion of the court was delivered by
Harman, C.:
At issue here is the propriety of the appointment of a receiver during the redemption period in a mortgage foreclosure action.
November 28, 1966, plaintiff-appellee filed its petition to foreclose a mortgage on a house and lot in Coffeyville, Kansas, executed June 10, 1965, by defendants-appellants. Personal service of summons was obtained on appellants. They failed to appear in the action. On February 10, 1967, default judgment was rendered against them for the principal sum of $8,560.19, plus interest, and the mortgage was ordered foreclosed and the real estate sold. The judgment recited the mortgage was a purchase money mortgage, that less than one-third of the purchase price of the real estate had been paid, and the period of redemption from sale was fixed at six months. May 1, 1967, the property was sold at sheriff’s sale, appellee bidding it in for the sum of $7,950.00. The same day the sale was duly confirmed by the court and a deficiency judgment in favor of appellee and against appellants in the sum of $1,032.69 was entered. May 4, 1967, appellee filed its motion for the appointment of a receiver, stating in pertinent part as follows:
“2. That the purchase price of said real estate was the sum of Eight Thousand Seven Hundred ($8,700.00) Dollars, which sum was the amount of the note and mortgage given by the defendants upon said property. That the defendants herein defaulted in the payments on said note and mortgage the 1st day of September, 1966. That the defendants herein have paid on the note and mortgage the sum of One Hundred Thirty-Nine and 81/100 ($139.81) Dollars.
“3. That the plaintiff believes that the defendants herein, Bobby Wayne Moulds, also known as Bobby W. Moulds, and Lela A. Moulds, his wife, have collected the sum of Four Hundred Eighty ($480.00) Dollars rent on this property since the 1st day of September, 1966. That the note and mortgage set out in this action is what is commonly called a VA loan, and such loan is guaranteed by the Veterans Administration. That the premises involved herein are rented for the sum of Sixty ($60.00) Dollars per month. That the period of redemption on this property is fixed at six (6) months, and if the property is rented at Sixty ($60.00) Dollars per month, this would amount to the sum of Three Hundred Sixty ($360.00) Dollars. This sum, together with the Four Hundred Eighty ($480.00) Dollars heretofore collected, would amount to Eight Hundred Forty ($840.00) Dollars.
“4. That the real estate described in plaintiff’s petition will depreciate in value during the next six months, and that the same is in need of repairs, and that the income from said property should be used for the upkeep and maintenance of said property during the period of redemption.
“5. That a receiver should be appointed by this court with authority to make the necessary repairs and see that said property is maintained so that the same will not depreciate in value during the period of redemption.”
Appellee mailed a copy of this motion to appellants, with a notice the motion would be heard May 12, 1967. On May 26, 1967, the motion was heard by the trial court. Appellee offered the testimony of a realtor who makes appraisements for the Veterans Administration. This witness testified he had investigated the property involved in this action; that he made an initial report to the Veterans Administration in which he told them that:
“. . . in his estimation . . . the house needed a new kitchen cabinet top, estimated to cost about $25; a new inlaid linoleum on the kitchen floor, estimated to cost about $25; interior decorations estimated to cost about $170, and a front entrance door, estimated to cost about $35. He further testified that the property was showing the need of paint on the exterior, and that within another four or five months it would need paint badly. This includes outside paint to prime and prepare the surface to prime the bare spots and give it one coat of good grade paint at an estimated cost of about $200.”
He further testified the property was being rented for $60.00 per month, and “if nothing unusual comes up other than regular maintenance, it wouldn’t take too much extra time and his charges would be $6 per month.”
At this hearing in response to inquiry by the court as to what appellee proposed to do with the rent money, counsel for appellee stated it was intended to make these necessary repairs to keep the property maintained; that the appellants had no equity in the property; they had received more money out of it than they put in; they had borrowed the full amount of the purchase price and had already collected rent in excess of the amount they had invested in the property, and it was not right or equitable for them to collect the rent and let the property go to rack and ruin, and a receiver was asked for so that the property could be improved out of the rent; that the receivership was requested by the Veterans Administration.
Appellee’s motion was sustained May 26, 1967, and a receiver was appointed, the trial court’s order reciting the receiver was authorized to collect the rent during the redemption period, and “to make any necessary repairs to said property and maintain it, so that the same will not depreciate in value during the period of redemption,” and that the receiver should be paid $6.00 per month and such expense as he may incur as receiver out of the rents collected.
On June 6, 1967, appellants filed their motion requesting the receivership be set aside as wrongfully obtained and asking for damages, including a reasonable attorney’s fee, for the wrongful procurement of the receivership. In said motion they asserted certain procedural defects in the procurement of the receivership but primarily alleged lack of authority to order a receivership during the redemption period. July 6, 1967, the trial court denied appellants’ motion and they have now appealed to this court.
Appellee first challenges appellants’ right to be heard, pointing out that the order appealed from does not involve an amount in excess of $500 as required by K. S. A. 60-2102 (a) (4). It is true the amount of rent payable during the redemption period would be less than $500. However, K. S. A. 60-2102 (a) (4) is only one of several separate statutes authorizing appeal and it does not exclusively prescribe orders which are appealable as of right. It merely authorizes appeals from the type of orders specified therein, and the dollar limitation it prescribes in an action to recover money has no application to other statutory provisions for appeals to this court.
K. S. A. 60-2102 (a) (3) provides that the appellate jurisdiction of this court may be invoked by appeal as a matter of right from “An order that appoints a receiver, or refuses to wind up a receivership. . . .” Moreover, K. S. A. 60-1305, a part of our procedural article authorizing appointment of a receiver, provides:
“An aggrieved party may, within ten (10) days, appeal from an order appointing or refusing to appoint a receiver without awaiting final determination of the proceeding.”
These statutes are in harmony with our long-standing view that an order appointing a receiver is appealable (Smith v. Shaver, 112 Kan. 790, 212 Pac. 666), and this is true regardless of the amount of money involved.
Appellee challenges appellants’ right to be heard on another score. It says that on June 1, 1967, it filed in the trial court an assignment of its judgment to the Veterans Administration and that no notice of appeal was ever served on the Veterans Administration. A similar objection was raised in Smith v. Shaver, supra, to no avail. There, as here, service of the notice of appeal was had upon the one procuring the appointment of the receiver, which appointment was prior to any assignment of interest. Beyond this, however, the matter would seem settled by K. S. A. 60-255 (c) which provides:
“In cases of any transfer of interest, the action may be continued by or against the original party, unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”
The Veterans Administration has never been substituted in this action or joined with the original party. Appellee procured the order which is the subject of this appeal.
Appellee defends and appellants attack the receivership proceeding upon other purely procedural grounds. We have considered these but go directly to the principal question raised: Was the trial court authorized to appoint a receiver?
The right to possession, and to the rents and profits, of property being foreclosed, during the period of redemption is, under K. S. A. 60-2414 (a), in the defendant owner of the property, and, except for waste, this right is absolute (Howard v. Tourbier, 98 Kan. 624, 160 Pac. 1144; Smith v. Shaver, supra; Aley v. Schroeder, 144 Kan. 739, 62 P. 2d 885; Mid-Continent Supply Co. v. Hauser, 176 Kan. 9, 269 P. 2d 453; Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P. 2d 360).
K. S. A. 60-2414 (p), dealing with the right of redemption of real estate sold upon foreclosure, provides:
“The holder of the certificate of purchase shall be entitled to prevent any waste or destruction of the premises purchased, and for that purpose the court, on proper showing, may issue an injunction, or, when required to protect said premises against waste, appoint and place in charge thereof a receiver, who shall hold said premises until such time as the purchaser is entitled to a deed, and shall be entitled to rent, control and manage the same, but the income during said time, except what is necessary to keep up repairs and prevent waste, shall go to the person who otherwise would be entitled to possession during the period of redemption.”
Appellee defends the receivership proceeding upon the theory of waste — that it was pleaded in its motion and proved upon the hearing at which the receiver was appointed.
In Black’s Law Dictionary, 4th ed., we find the term “waste” defined thus:
“An abuse or destructive use of property by one in rightful possession. . . . A destruction or material alteration or deterioration of the freehold, or of the improvements forming a material part thereof, by any person right fully in possession, but who has not the fee title or the full estate. . . . An unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in its substantial injury.”
This court has dealt infrequently with the subject, but has declared waste where timber was cut and rock quarried upon premises (Snyder v. Hopkins, 31 Kan. 557, 3 Pac. 367; Holmberg v. Johnson, 45 Kan. 197, 25 Pac. 575) and where there was an abandonment and failure to protect a building along a railroad right-of-way, formerly used as a mill, which building had its windows and doors removed (Loftus v. Mill Co., 91 Kan. 856, 139 Pac. 480). The term implies neglect or misconduct resulting in material damage to or loss of the property, and this is the class of cases in which receivers have traditionally been appointed (75 C. J. S., Receivers, §§ 18-20). We are aware of no cases in which ordinary depreciation of property due to age and normal use has been declared to be waste for the purpose of appointment of a receiver. In Aley v. Schroeder, supra, this court specifically held that during the period of redemption no portion of the rents could be withheld from the defendant owner for the purpose of paying taxes, insurance or repairs on the mortgaged real estate.
We have already set forth appellee’s motion for the appointment of receiver — the heart of which is contained in paragraph 4 — and the evidence offered in support thereof. We find no mention of waste in either, nor anything which can reasonably be construed to be of that character, and the trial court’s order made no finding of waste. All that was alleged or shown was some need for ordinary repair or upkeep due to passage of time and normal use. This was an insufficient showing upon which to appoint a receiver and thus deprive the owner of his right to the rents and profits during the period of redemption, a right which this state’s legislative policy has always protected (Broadhurst Foundation v. New Hope Baptist Society, supra). We hold the receiver was wrongfully appointed, the receivership should be set aside, and appellants should be restored to the rents and profits of the property during the redemption period free and clear of the costs and expenses of the receivership (Howard v. Tourbier, supra; Smith v. Shaver, supra).
Appellants further contend the trial court erred in refusing to assess damages against appellee for wrongfully procuring the receivership. We agree. One who causes or procures the wrongful appointment of a receiver is liable for the resultant damages, in- eluding attorney fees of counsel employed to procure vacation of the order appointing the receiver (Petersime Incubator Co. v. Ferguson, 143 Kan. 151, 53 P. 2d 505; 75 C. J. S., Receivers, § 431).
Accordingly the trial courts judgment is reversed with directions to sustain appellants’ motion to set aside the receivership order and to assess damages resulting from the wrongful procurement of the order in accord with the views herein expressed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Edward Davis, was convicted of attempted robbery. He was sentenced to life imprisonment as an habitual criminal and has appealed.
Very briefly, the evidence showed that the defendant, with two companions, all wearing handkerchief masks, entered the Courthouse Market in Wichita owned by Mr. and Mrs. Shutts, surrounded the owner’s wife and demanded all their money; that they grabbed Mrs. Shutts by the wrists and one of them said that if she screamed, they would “cut her guts out.” Before the terrified woman had time to hand over the money, her husband made an appearance from the back room with a gun and held the three bandits at bay until the police were summoned and took over.
The contentions advanced by the defendant in this appeal are few. At the trial, objection was made to the admission of evidence showing a prior conviction of the defendant in Oklahoma for robbery with firearms. This objection was overruled and the ruling is assigned as error. The contention in this regard is without merit. Under K. S. A. 60-455, as well as under a host of our decisions, the evidence was admissible for the purpose of showing identity, intent, motive, knowledge, plan and inclination. (State v. Myrick, 181 Kan. 1056, 317 P. 2d 485; State v. Wright, 194 Kan. 271, 398 P. 2d 339; State v. Poulos, 196 Kan. 287, 411 P. 2d 689.)
Over the defendant’s objections, evidence of three prior felony convictions was introduced at the time of sentence, one being the conviction from Oklahoma, and the other two being from the state of Alabama. The defendant contends that all three convictions were inadmissible because evidenced by copies of records of the Oklahoma State Penitentiary and of the Alabama Hoard of Corrections, respectively.
We have frequently had occasion to consider similar contentions, and have invariably rejected them. Our most recent cases in this area are Burnett v. State, 199 Kan. 362, 429 P. 2d 923; State v. Eaton, 199 Kan. 610, 433 P. 2d 347.) Those cases and the authorities cited therein are decisive of the question.
No error appears in the judgment of the court below and it is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Harold H. Faidley, was tried by a jury and convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor, in violation of K. S. A. 8-530. He has appealed, and asserts the following assignment of error:
“The court erred in permitting the arresting highway patrol officer to testify to his observation of the defendant’s performance of the heel-to-toe balance test which the officer ordered the defendant to perform prior to advising him of his constitutional rights under the Fifth and Sixth Amendments to the Constitution of the United States.”
The facts are not in dispute and are summarized: At about 10:50 p. m., on April 1,1967, Lee Schuler, an officer of the Kansas Highway Patrol, was driving south on U.S. 81 Highway, north of Wichita. U.S. 81 is a four-lane highway with two lanes for southbound traffic and two lanes for northbound traffic. Schuler observed a 1966 Chevrolet pickup truck traveling south on the highway at about 35 miles per hour. As he was overtaking the pickup, he observed it weaving two or three feet into the left lane next to the median. This occurred three or four times. At one point it weaved to the right and went off the roadway and onto the shoulder approximately two feet. Shortly thereafter, Schuler stopped the pickup with his red light.
Schuler approached the driver’s side of the pickup and the defendant was seated behind the steering wheel; he was alone in the vehicle. Schuler detected a moderate smell of some type of intoxicating liquor. He asked to see the defendant’s driver’s license. After the defendant produced the license from his billfold, Schuler asked him to get out of the vehicle, which he did. His balance was uncertain and he leaned up against the bed of the pickup to steady himself. Schuler then asked the defendant to step behind the pickup into the lights of the patrol car. The following is an excerpt of Schuler’s testimony which was admitted over the defendant’s objection, and involves the point raised in this appeal:
“Q. . . . And what transpired back of the pickup?
“A. Then I asked him for a coordination test which is walking heel-to-toe, or walking a straight line.
“Q. And did he perform this test for you?
“A. Well, he tried, yes.
“Q. You say he tried. What do you mean, Officer — -Trooper?
“A. Well, he couldn’t walk heel-to-toe, so I placed him in the patrol vehicle.”
Schuler testified that when he placed the defendant in the patrol car he arrested him for driving while under the influence of intoxicating liquor, and then fully advised him of his constitutional rights in accordance with Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2nd 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974.
When Schuler and the defendant arrived at the county jail, the defendant was required to perform other coordination tests, but he made no objection to the officer’s testimony concerning observations of those tests.
The defendant argues that the privilege against self-incrimination as contained in the Fifth Admendment to the Constitution of the United States (Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d. 653, 659, 84 S. Ct. 1489), that “[n]o person shall be . . . compelled in any Criminal Case to be a witness against himself . . .”, protects an accused from being compelled to incriminate himself in any manner. He contends its provisions are broad enough to include physical acts of a testimonial nature such as coordination and sobriety tests, and asserts that testimony of another of the manner in which such tests were performed is as obnoxious to the constitutional right as self-incrimination through the expediency of compelling such results from the defendant’s own mouth.
The defendant cites Miranda in support of his contention, which he states holds that the privilege against self-incrimination applies where the accused is in the custody of the police at the police station or is otherwise deprived of his freedom of action in any significant way. He argues that under our statute (K. S. A. 62-1202) and our decisions (State v. Martin, 89 Kan. 678, 131 Pac. 1190; State v. Cook, 194 Kan. 495, 399 P. 2d 835) he was restrained when Schuler required him to stop with the red light, and he was thereby deprived of his freedom of action in a substantial way. He then argues that the Miranda warnings which he states he must be advised of, became an absolute prerequisite in overcoming the inherent pressures of performing the test under the direction and command of the patrolman, and, lacking such warnings, the district court committed reversible error in admitting the testimony.
As preliminary, it should be noted this case presents no question of the admissibility in evidence of anything the defendant said in or out of the pickup before he was placed in the patrol car which implicates his privilege against self-incrimination. The state introduced no such evidence as a part of its case. The sole question pre sented is the admissibility of the result of the test performed on the highway.
Although the defendant does not invoice the privilege of silence guaranted him by Section 10 of the Kansas Bill of Rights which provides that “[i]n all prosecutions . . . [n]o person shall be a witness against himself . . .,” we think the section must be considered. The provisions of the Fifth Amendment grant no greater protection against self-incrimination than does Section 10 of the Bill of Rights. (State v. Hill, 189 Kan. 403, 412, 369 P. 2d 365, 91 A. L. R. 2d 750.) The conclusion is not based upon the use of the word “witness” in either provision. The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness, and “the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the consitutional guaranties, however differently worded, should have as far as possible the same interpretation . . ,” (Counselman v. Hitchcock, 142 U. S. 547, 584, 585, 35 L. Ed. 1110, 1121, 12 S. Ct. 195.) See, also, Schmerber v. California, 384 U. S. 757, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, and 8 Wigmore, Evidence, § 2252 (McNaughton rev. 1961). Whether the privilege contained in Section 10 may be invoked by a suspect or an accused is determined by the same tests applicable as to whether the testimonial product or act violates due process of law under the Fourteenth Amendment. In Malloy v. Hogan, supra, it was held that:
“. . . [t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” (p. 8.)
While it has been held that the rule of Miranda begins to operate when an individual is taken into custody or is otherwise deprived of his freedom of action in any significant way (Miranda v. Arizona, supra, L. Ed. 2d p. 706; State v. Gillespie, 100 N. J. Super. 71, 241 A. 2d 239), the issue of this appeal hinges upon the scope of the privilege against self-incrimination as contained in Section 10 of the Bill of Rights and the Fifth Amendment. Cases such as Lee v. State, 187 Kan. 566, 358 P. 2d 765 and Hazlett v. Motor Vehicle Department, 195 Kan. 439, 407 P. 2d 551, involving administrative proceedings under the Motor Vehicle Act, are not involved.
The scope of the self-incriminating clause of the Fifth Amendment was before the Supreme Court of the United States in Schmerber v. California, supra, which was decided after Miranda. It was held that the defendant’s constitutional rights protected by the Fourth, Fifth and Sixth Amendments had not been violated by compelling him to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report. In the opinion it was said:
“. . . both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” (1. c. 764.) (Emphasis supplied.)
That holding was supported by Holt v. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, where the question arose whether a blouse belonged to the defendant. A witness testified at the trial that the defendant put on the blouse and it had fit him. It was contended that the admission of the evidence was error because compelling him to put on the blouse was a violation of his privilege. The claim was rejected as “an extravagant extension of the Fifth Amendment.” Mr. Justice Holmes, speaking for the court, said:
“. . . [t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material . . .” (pp. 252,253.)
The principle of Holt and Schmerber was reaffirmed in the subsequent case of United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, where it was said that none of the activities stated in Schmerber, heretofore quoted, becomes testimonial within the scope of the privilege because required of the accused in a pretrial confrontation.
We have no doubt that compelling the defendant merely to perform the coordination or sobriety test on the highway for observation by the patrolman involved no compulsion of the accused to give evidence having testimonial significance. At most, it was compulsion of the defendant to demonstrate his ability to' walk, after being requested to walk in a particular manner. There was no forced communication by the defendant to disclose any knowledge he might have “from his own mouth.” (Miranda v. Arizona, supra, L. Ed. 2d p. 715.)
This case presents no difference in principle from compelling Schmerber to provide a blood sample or Holt to put on the blouse, and, as in those instances, is not within the scope of the privilege. In short, the potential application of the rule of Miranda became irrelevant to the defendant’s nontestimonial conduct on the highway which Schuler put in evidence by detailing the results of the coordination or sobriety test. (State v. Gillespie, supra.) The privilege of silence guaranteed by Section 10 of our Bill of Rights and the Fifth Amendment was not abridged by the use of the evidence at the time it was introduced. Our own cases tend to support this conclusion: State v. Freeman, 195 Kan. 561, 565, 566, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981, and State v. Patterson, 200 Kan. 176, 181, 434 P. 2d 808.
We have examined Spencer v. State, Okl. Cr., 404 P. 2d 46, and Apodaca v. State, Tex. Crim. App., 146 S. W. 2d 381, relied upon by the defendant, where different conclusions were reached. While we have the highest respect for the criminal courts of appeals of those jurisdictions, we decline to follow those decisions. They were decided prior to Schmerber and are factually different in point of application. Moreover, no claim of violation of the Fifth Amendment was presented in either case.
The defendant lastly claims that the results of the coordination or sobriety test were inadmissible because they were obtained in violation of his rights under the Sixth Amendment to the assistance of counsel. The point is not well taken. Schuler clearly had reasonable grounds to stop the pickup, and the test was required to ascertain whether he had probable cause to believe that the defendant was under the influence of intoxicating liquor, and thus driving the vehicle in violation of K. S. A. 8-530. To the extent that his argument is based upon alleged deprivation of his Miranda rights to assert the privilege against self-incrimination, he was not deprived of the assistance of counsel. (Schmerber v. California, supra, L. Ed. 2d p. 917. That was a non-existent right which he could not assert. The failure to advise the defendant of his right to counsel to assert a theoretical right which would have been futile was, in our opinion, harmless beyond a reasonable doubt. (Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) We agree with the following quotation from Commonwealth v. Wilbur, 353 Mass. 76 (1968), 231 N. E. 2d 919.
. . We think the warning principles announced in the Miranda case must be applied reasonably and with common sense and do not constitute an arid, ritualistic formula to be administered inflexibly. We assume that the principles are designed to achieve the substance of protection of defendants requiring protection and not to penalize (for minor and non-prejudicial failure to adhere to a precise formula) law enforcement officials intelligently attempting in good faith to afford arrested persons considerate treatment and due process of law . . .” (231 N.E.2d pp. 923, 924.)
The district court did not err in overruling the defendant’s motion for a new trial where the point relied upon was considered and overruled. The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an adverse ruling in an action commenced under the provisions of K. S. A. 44-512a. The controversy arises out of a workmen’s compensation proceeding in which an award of compensation was set aside by a decision of this court in Siebert v. Hoch, 199 Kan. 299, 428 P. 2d 825.
The facts are not disputed.
On February 11, 1966, the district court entered a judgment awarding compensation to claimants (appellants herein). The defendants and their insurance carrier (appellees herein) appealed.
A decision of this court reversing the judgment of the district court and setting aside the award was filed on June 30, 1967. In the interim payments to claimants totaling $8,504.00 had been made in accordance with the provisions for nonstay of payments pending appeal required by K. S. A. 1967 Supp. 44-556.
On June 12, 1967, the last payment of compensation was made.
On June 29, 1967, claimants filed a motion in this court for an extension of time in which to file a motion for rehearing. The motion was granted and claimants were given an additional twenty days. On July 19, thirty-nine days after the decision was filed, claimants filed their motion for rehearing. The motion was denied on August 31 and on September 1 a mandate was issued by the clerk of this court and received by the clerk of the district court on September 5.
On June 26 claimants made a demand for payment under K. S. A. 44-512a. No payments were made in response to the demand and this action was commenced by claimants on July 20, 1967.
After pleadings were completed both parties filed motions for summary judgment. The motions were argued and the district court filed its decision in favor of defendants (appellees herein) on February 27, 1968. After the denial of a motion for reconsideration claimants perfected this, appeal.
Only one question is presented — are claimants in a workmens compensation case entitled to relief under K. S. A. 44-512a against an employer and his insurance carrier who have made payments in accordance with the decision of the district court, but who discontinued said payments subsequent to the filing of a decision of reversal with the Clerk of the Supreme Court?
The appellants claim the decision of this court, reversing the award for workmen s compensation, did not become effective until the mandate of this court was filed with the clerk of the district court on September 5,1967.
Appellees claim that no compensation became due after the award was set aside by a decision filed with the clerk of this court on June 10,1967.
After noting statutes and rules pertaining to the filing of opinions of this court, the district court reasoned in substance that a decision of this court, announced by the filing of an opinion, is a judgment and effective when the opinion is filed and that the mandate is only a ministerial act to carry the judgment into effect.
While the reasoning of the district court is persuasive and supported by some authority (see Save The Trains v. Chicago & N. W. Ry. Co., 168 Neb. 180, 95 N. W. 2d 334), we think it unnecessary to reach beyond the provisions of the Workmens Compensation Act to resolve the issue.
We have repeatedly held in a long line of decisions that the act establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself. (Teague v. George, 188 Kan. 809, 365 P. 2d 1087, and cases cited therein.)
The right to appeal and procedures in connection therewith in workmen’s compensation proceedings are fully set out in K. S. A. 1967 Supp. 44-556. The statute provides complete and exclusive procedures pertaining to appeals. No provision is found therein that supports the position taken by appellants.
Appeals to the supreme court are provided for as follows:
“. . . Provided further, That any such party to the proceedings may appeal from any findings or order of the district court to the supreme court on questions of law: Provided, however, The compensation payable under the decision of the district court shall not be stayed pending such appeal to the supreme court.
“Such appeal to the supreme court shall be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within twenty (20) days after the final order of said district court, and thereafter such appeal shall be prosecuted in like manner as other appeals in civil cases, and shall take precedent over other cases except cases of a like character. The clerk of the supreme court and the clerks of the several district courts shall furnish the director with certified copies of decisions and judgments in workmen’s compensation cases rendered by their respective courts.”
By the plain language of the statute the right of appeal to the supreme court is qualified by the requirement that compensation payable be not stayed. In other words, continuance of payments is a prerequisite of the right to appeal as well as a requirement pending appeal. When a decision is filed, the clerk is required to furnish the director a certified copy thereof. We believe the language of the statute clearly contemplates that on the filing of a decision, which sets aside an award of compensation, as in this case, the requirement that compensation payable be not stayed, no longer obtains. The statute contains no provision requiring further payment of compensation, in such a case, after the decision is filed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action initiated under the declaratory judgment act for the purpose of obtaining judicial construction of a written lease and a determination of the rights of the parties thereunder.
Summary judgment was rendered in favor of the defendants and plaintiff has appealed.
The controversy presented is whether, under the terms of the lease, the plaintiff, the lessor, was obligated to sign a mortgage subjecting her fee interest to the payment of a loan to the lessee without being provided with the actual cost of improvements made by the lessee.
The parties have, for the purpose of reducing a somewhat voluminous record, stipulated—
“It is hereby stipulated by the parties that in order to avoid costs in the printing of the entire exhibits which were before the trial court for its consideration that said exhibits disclose the following facts, and this stipulation is made for the purpose of its being used in the record of this case in lieu of the printing of the complete exhibits:
“1. That the plaintiff is and was the owner of the following described real estate situated in the City of Topeka, Shawnee County, Kansas: ... [A tract consisting of sixteen acres more or less west of Topeka Avenue south is described by metes and bounds.]
“2. That on November 4, 1965, the plaintiff, Nellie M. Mays, and defendant, Middle Iowa Realty Corp., a corporation, executed an Indenture of Lease (Exhibit 1) on the above described property.
“3. That said lease was assigned to defendants Mace Siegel and Richard Cohen, d/b/a Macerich Real Estate Company.
“4. That on November 23, 1965, Macerich Real Estate Company executed a sub-lease to Arlan’s Dept. Store of Topeka, Inc. (Exhibit 8).
“5. On February 25, 1966, Plaintiff Nellie M. Mays, Defendant Middle Iowa Realty Corp. and Defendant Arlan’s Dept. Store of Topeka, Inc., entered into a certain Tri-Party Agreement (Exhibit 3).
“6. That on April 21, 1967, Plaintiff Nellie M. Mays was furnished with a proposed note and mortgage to John Hancock Mutual Life Insurance Company (Exhibit 4) along with a request that she execute the same.
“7. That prior to the execution of Exhibit 1 the property being leased was impressed with leases from Nellie M. Mays to other persons and Defendant Macerich Real Estate Company negotiated release of those leases as a condition of the execution of Exhibit 1 and the total sum of $71,070.00 was paid by Defendant Macerich Real Estate Company in consideration thereof. Nellie M. Mays received the sum of $52,500.00 upon the signing of Exhibit 1.”
The lease provided for an annual rental payment of $18,000.
The record contains section 33, the material provisions here, of the sixty-five page indenture which covers the lease agreement. Section 33 contains several subsections, all pertaining to the right to mortgage the premises.
Subsection (a) prohibits the lessor from placing any mortgage or encumbrance on her fee interest in the premises for her own special benefit.
Subsection (b) extends mortgage rights to the lessee in the following language:
“Tenant shall have the right, at any time and from time to time, during the term of this lease (as tire same may be renewed and extended) to subject the fee interest of Landlord in the Demised Premises, including all rights and easements appurtenant thereto and all buildings and other improvements thereon, at any time and from time to time, to any one or more “Permitted Mortgages” (as defined in paragraph (c) of this Section 33) . . .”
Subsection (c) reads in part:
“Landlord and Tenant agree that this lease and the fee interest of Landlord in the Demised Premises shall be, and hereby are made, subject and subordinate at all times to the lien of each first mortgage (herein called a “Permitted Mortgage”) which may at any time and from time to time hereafter affect all or any part of the fee of the Demised Premises including all rights and easements appurtenant thereto, . . .”
Subsection (d) (2) provides that each permitted mortgage shall contain a provision exculpating the lessor and lessee from any personal liability for any default under the mortgage.
Subsection (/) defines the terms “mortgage” and “Permitted Mortgage”—
“The terms mortgage’ and ‘Permitted Mortgage,’ whenever used herein, shall include both so-called permanent financing and also so-called interim building and construction loan financing and all advances thereunder. All of the provisions hereof shall apply with respect to Landlord’s obligations with respect to permanent financing, shall apply as well to such so-called interim building and loan financing and all advances thereunder, and Landlord shall execute any and all agreements and other instruments necessary or desirable in connection therewith. . . .”
A rider was attached to section 33 of the lease, at the request of lessors attorney, which did to some extent limit the amount of the mortgage. It reads:
“(h) Tenant covenants and agrees that the principal balance of any Permitted Mortgage described herein shall not exceed an amount determined by multiplying the aggregate number of square feet of floor space in all buildings constructed or under construction on the Demised Premises at such time as said Permitted Mortgage shall be made, renewed, modified, consolidated, replaced, extended or refinanced times the sum of $13.00 per square foot.
“(*) Tenant covenants and agrees that the monthly installments of interest and amortization required to be paid under any Permitted Mortgage described herein (excluding any final or terminal payment thereunder) plus the monthly installments of rent payable by the Tenant to the Landlord hereunder plus one-twelfth (%2) of the annual taxes, special and general assessments, water rent, rates and charges, sewer rents and other governmental impositions and charges of every kind and nature which shall during the term of this lease be charged, levied, assessed or imposed upon or with respect to the Demised Premises shall not exceed the aggregate monthly installments of rent (minimum or percentage), additional rent and taxes, assessments and other charges or impositions payable to the Tenant or the applicable governmental authorities by all sublessees under all subleases affecting all or any portion of the Demised Premises.”
In her petition the plaintiff stated the controversy in the following language:
“That defendants Richard M. Cohen and Mace Siegel, d/b/a Macerich Real Estate Company, assignees of the aforesaid lease, have made demand upon the Plaintiff to execute a mortgage between said partnership, the Plaintiff, and John Hancock Mutual Life Insurance Company on said real estate in the amount of Nine Hundred and Forty-Five Thousand Dollars ($945,000).
“That the Plaintiff has hereintofore demanded that the aforesaid Macerich Real Estate Company, a partnership, provide her with the figures relating to the actual cost of the construction of the improvements on said real estate, but said Macerich Real Estate Company has and does refuse to furnish said figures to the Plaintiff.
“That the Plaintiff believes that under the lease, hereintofore executed and assigned, she has the right to such figures and the right to withhold execution of said mortgage if it purports to mortgage the property out of proportion to the cost of improvement.”
The defendants’ answer admits that a serious controversy has existed between plaintiff and defendants which controversy, they claim, resulted from the failure of the plaintiff to “perform her duties under the express, plain and unambiguous terms of said indenture of lease” after defendants’ demand upon plaintiff to so perform.
After the issues were framed and the instruments placed before the court in the form of exhibits, the defendants moved for summary judgment for the reason that there was “no genuine issue of any material fact and that the defendants herein are entitled to judgment as a matter of law.” The trial court, after hearing extensive arguments, stated:
“All right, Mr. Reporter, let the record show that I have heard the arguments of counsel and have studied the pleadings in connection with this matter, and further that this Court has carefully studied the indenture of lease entered into on the 4th day of November, 1965 between Mrs. Mays —between Miss Mays, I guess that is, a single woman, and the Middle Iowa Realty Corporation, and the assignee thereof which is the Macerich Real Estate Company, and I am of the opinion that Section 33 of this lease entitled “Mortgages” fully settles the rights of the parties in connection with this matter. I want the record to show that this lease is a lease that obviously has been worked out in great detail covering every aspect of this transaction, and as long as the provisions of the rider in Section 33, (H) and (I), have been complied with, then it is this Court’s opinion that Miss Mays must execute a mortgage under the provisions thereof. The motion of the defendants for summary judgment in that regard will be sustained. . . .”
Counsel for plaintiff requested and received permission to make an offer of proof. He stated:
“This has been an action for declaratory judgment to determine the meaning of a lease which is ambiguous in certain respects. There are genuine issues as to material facts concerning this ambiguity. The testimony would be in this case that paragraph (F), Section 33, was intended to mean by all the parties at the time that the lease was executed and at the time the lease was prepared, that a mortgage, that the fee interest of Miss Mays would be subordinated to a construction mortgage for permanent financing to the extent of 100% of such construction costs. . . .”
Counsel then listed the prospective witnesses which he thought would so testify.
The trial court then stated:
“For the purposes of the record, so that it is perfectly clear, the basis of my holding is that this evidence would be inadmissible in that the Court feels that the terms of this lease are fully set forth within its provisions. . . .”
Summary judgment was rendered in favor of the defendants and plaintiff has appealed.
Regardless of the numerous classifications made in her argument, we summarized the real issue sought to be established by appellant —does appellant have the right to refuse to subordinate her land to a mortgage until defendants have furnished her information as to the cost of construction, and does appellant have the further right to refuse to sign the mortgage unless the “cost of construction,” as appellant interprets that term, is as much as the face of the mortgage?
In support of the above issue appellant contends that the terms of the contract of lease are ambiguous and that oral evidence should have been received to show the intention of the parties. More specifically the appellant contends that section 33 of the lease, which we have quoted in part and summarized in part, is ambiguous and could not fully settle the rights of the parties without extrinsic evidence.
The appellant, having made the contention that the lease is ambiguous, follows with the contention that summary judgment was improper because a genuine issue of material fact existed.
We find but a single simple issue will dispose of this controversy— is the contract ambiguous? If it is not, no genuine issue of fact existed.
This court has announced a few rules which will aid us in determining whether or not an ambiguity exists in the contract of lease under consideration.
There can be no ambiguity in a written agreement unless after the application of pertinent rules of construction there is left a genuine uncertainty which of two or more possible meanings was intended by the parties. In State v. Downey, 198 Kan. 564, 568, 426 P. 2d 55, we stated the rule as follows:
“In this connection it is to be noted that when confronted with the construction of an instrument, such as the lease before us here, our obligation is not to consider isolated provisions but to consider and construe the instrument in its entirety. (First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350.) We are also mindful of the often stated rule that ambiguity in a contract does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two, or more meanings is the proper one. (Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501; Morgan v. Wheeler, 150 Kan. 667, 95 P. 2d 320.)” (See, also, Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803.)
In determining whether a written contract was ambiguous, we held in Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799:
“Language in a contract is not ambiguous unless the words used to express the meaning and intention of .the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings.” (Syl. 1.)
Subsection (/) of section 33 provides in clear language for two types of permitted mortgages — “permanent financing” and “interim building and construction financing.” We are concerned here only with “permanent financing.” As the appellees carry their own interim financing no controversy has been presented on that issue.
Subsection (h) of section 33 in clear and specific language limits the amount of the mortgage to the amount determined by multiplying the aggregate number of square feet of floor space in all buildings constructed on the premises times $13 per square foot. It is not denied that the amount of the mortgage is well below the sum so arrived at.
The rider to section 33, subparagraph (h) was proposed by appellant and goes directly to the subject of a limit on the amount of a mortgage to which appellant’s fee interest would be subordinated. If appellant had been able to negotiate further limitations in that regard, this would have been the place where such further limitations should and would have appeared. Not having done so, the lease as executed by the parties is binding on the parties without such limitation.
Appellant appears to argue that the plain language of section 33, and particularly the rider to section 33 (h), is ambiguous for the express reason that it does not contain a provision giving plaintiff the right to refuse to subordinate her fee interest to a mortgage unless the amount of the mortgage is not more than the “cost of construction” of the improvements built on the premises. The mere fact that it does not appear in the lease does not in and of itself establish that the lease is ambiguous.
Actually, the appellant is not asking us to construe an ambiguous instrument but is in effect asking us to add to the terms already covered by the contract.
Where the parties expressly contract under what circumstances an obligation may arise with reference to a certain subject matter, and the contract is entered into without fraud, coercion or mistake, the rights of the contracting parties are measured by the provisions of the contract. (G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, 84 P. 2d 934; see, also, Duvanel v. Sinclair Refining Co., 170 Kan. 483, 227 P. 2d 88.)
In Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799, we stated at page 242:
“. . . The words incomplete and ambiguous are not synonymous. The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings. A contract is not ambiguous when it fails to contain a restriction against a sale which one party says should have been inserted. Ambiguity does not arise from total omission. It arises when application of pertinent rules of interpretation to an instrument as a whole fails to make certain which one of two or more meanings is conveyed by the words employed by the parties. (Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350; Brungardt v. Smith, 178 Kan. 629, 636, 290 P. 2d 1039; Weiner v. Wilshire Oil Co., supra [192 Kan. 490, 389 P. 2d 803].)”
Applying the above rules to the lease under consideration, we find no ambiguity in the agreement. We continue to adhere to the well established rule, which has been frequently applied, that where parties have carried on negotiations and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations the written agreement determines their rights. In Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541, we so stated at page 338:
“When a contract is complete, unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible. (Brown v. Beckerdite, 174 Kan. 153, 254 P. 2d 308; 17A C. J. S. Contracts § 322; 17 Am. Jur. 2d Contracts § 260.)
“When terms of a lease are plain and unambiguous the meaning must be determined by its contents alone and words cannot be read into the agreement which import an intent wholly unexpressed when it was executed. (Borgen v. Wiglesworth, 189 Kan. 261, 369 P. 2d 360; 17A C. J. S. Contracts § 321; 17 Am. Jur. 2d Contracts § 261.)” (See, also, Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803, and cases cited therein.)
What has been said applies with equal force to appellant’s claim of right to introduce evidence of inequitable and unconscionable conduct on the part of the appellees in their effort to enforce performance of the agreement. No further discussion of that matter is required. However, we do not mean to infer by the above statement that the conduct was unconscionable under the circumstances.
The lease not being ambiguous, evidence was not admissible to vary its terms. There being no genuine issue of fact, the question was ripe for determination on a motion for summary judgment. We disposed of this question in Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P. 2d 802, where we stated at page 530:
“If the language of a grant of easement is clear and explicit extraneous circumstances may not be resorted to, nor parol evidence admitted, to vary the terms of the instrument. (25 Am. Jur. 2d, Easements and Licenses, §23, p. 434; 28 C. J. S., Easements, §26, p. 680.)
“Therefore, it would appear if the language of the grant is clear and explicit the construction to be given the instrument was a question which could properly be determined on motion for summary judgment under the rules set forth in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, and Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265.”
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action for compensation brought under the Workmen’s Compensation Act. The question on appeal is whether claim for compensation was served within the time fixed by the Act. The trial court found the claim not timely filed, and the workman, Martin A. Riedel, has appealed. We will refer to appellant as claimant, or Riedel; to the appellees, collectively, as respond ents; to appellee Gage Plumbing and Heating Company, Inc., as employer, or Gage; and to appellee Alliance Mutual Casualty Company, as carrier, or Alliance.
Many of the facts are undisputed. On February 1, 1965, claimant injured his back while working for Gage. The following day claimant sought medical advice from Dr. George Miller, his family doctor. Dr. Miller placed Mr. Reidel in the hospital and continued to treat him with Gage’s knowledge.
On March 1, 1965, Mr. Riedel returned to his regular work. On March 9, he again saw Dr. Miller. Under date of March 23, 1965, Dr. Miller executed his medical report on Form 1108G, Physician’s Report Blank. Dr. Miller’s report, which was sent to Alliance, showed caimant was discharged from the hospital, 2-15-65; that he was able to resume regular work on 3-1-65; that he was not in need of further medical treatment; and that he was last examined on 3-9-65. A bill for Dr. Miller’s medical services, amounting to $84, was paid by Alliance on March 29, 1965. Drug and hospital bills were paid by Alliance on March 12, and March 29, respectively.
Claim for compensation was not served until May 13, 1966, more than 180 days after the accident. (See K. S. A. 44-520a.) However, the trial court found the employer did not report the accident, as required by K. S. A. 44-557, and that the time for filing claim was thus extended to one year from last payment of compensation or last medical care furnished by employer. The respondents do not challenge this finding.
The furnishing of medical care has been held equivalent to the payment of compensation (Dexter v. Wilde Tool Co., 188 Kan. 816, 365 P. 2d 1092) and the real dispute in this case is simply as to when the respondents last provided medical treatment. The respondents contend the date was March 9, 1965, this date being more than one year prior to the date claim was filed (May 13, 1966), while claimant maintains medical care was furnished him after May 13, 1965, and within the year permitted by statute.
Before relating the precise basis on which Mr. Riedel predicates his contention, we must recount a few additional facts. After Dr. Miller submitted his medical report showing claimant was last seen on March 9, 1965, and was able to return to regular work on March 1, and after respondents had received Dr. Miller’s bill, and had paid the same on March 29, 1965, they heard nothing more concerning claimant’s back or its treatment until they received a letter from claimant’s attorney on May 13, 1966. Prior to that date the respondents assumed the back injury had long since healed.
However, there is evidence that claimant visited Dr. Miller on April 10 and May 8, 1965, being advised in each instance to continue, or to resume flexion exercises. On June 5, 1965, Riedel again saw the doctor who recommended he see an orthopedist. These visits were billed to Mr. Riedel personally, and were paid for either by Riedel or his wife. Riedel testified that Dr. Miller did not release him from back treatments and at the time of a second injury in June he was still using the back brace prescribed by the doctor.
On June 28, 1965, claimant sustained a second accidental injury while working for Gage. In this accident, claimant’s arm was injured. Originally this second, and unrelated, injury was treated by a Concordia doctor, but on August 14, 1965, Mr. Riedel commenced going to Dr. Miller for treatment to his arm, and continued with him periodically until August, 1966.
It is against this background that claimant maintains his claim was timely filed, his contention being that respondents were providing him medical treatment when he consulted Dr. Miller in connection with his back on June 5, 1965. Further, claimant contends that the respondents furnished medical care as to his back on various occasions from August, 1965, to August, 1966, when, in treating the arm injury, Dr. Miller would also inquire and give advice about the back injury.
The trial court made written findings of fact, some of which are reflected in the foregoing portion of this opinion. In addition, the court found as follows:
“On June 5, 1965 claimant consulted Dr. Miller, apparently about his back. This consultation was not known to the respondent and it was billed to and paid by claimant personally.
“The respondent had no notice or knowledge of Dr. Miller’s treatment of the back injury at any time after March of 1965 and the record does not show that any such treatment was ever billed to or paid by the respondent.
“The first issue to be determined by the Court is whether the claim was timely filed within one year of payment of compensation or furnishing of medical treatment by respondent or is barred.
“In consideration of the facts and circumstances herein the Court finds; That the June 5, 1965 consultation between claimant and his family doctor, paid by claimant personally and unknown to respondent can under no principal be considered treatment furnished by the respondent and does not toll the running of the statute as to filing time.
“The Court further finds that neither do matters connected with the payment of bills for the unrelated second injury extend the time for filing the claim. The record does not show that respondent paid for anything connected with the first injury during that time. That if it did so such billing was undiselosedly included in bills for treatment of the unrelated second injury; That respondent was neither aware of any such payment, if it were made, nor can it be charged with being aware of furnishing any such treatment in this case.
“The finding and conclusion of the Court that the claim was not filed within the time prescribed by statute makes further findings herein unnecessary.”
Under legal principles long espoused by this court, the findings of a trial court are controlling upon review where they are supported by substantial competent evidence, and, if so supported, they may not be disturbed or set aside on appeal, even though the evidence might have sustained contrary findings. (Ippolito v. Katz Drug Co., 199 Kan. 309, 429 P. 2d 101; Dexter v. Wilde Tool Co., supra, Sirico v. Burch, 190 Kan. 474, 375 P. 2d 596.) These principles are applicable here, for in Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681, we held specifically that whether a claim for compensation has been filed in time is primarily a question of fact.
In considering whether findings are supported by the evidence, we do not weigh the evidence, that being the responsibility of the trial court. (Mein v. Meade County, 197 Kan. 810, 421 P. 2d 177.) We must view the evidence in the light most favorable to whoever prevailed in the court below. (Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457.
Measured by these rules we are obliged to say that the court’s findings are sufficiently supported by substantial competent evidence. Sue Hull, Dr. Miller’s secretary, who handled all billings for the doctor, testified she billed claimant personally for the visit of June 5, 1965, and that charges for this and other visits made after March 9, 1965, but before August 14, 1965, were paid either by Mr. or Mrs. Riedel — she didn’t recall which. At another point, Mrs. Hull testified that to the best of her knowledge Mr. Riedel came in and voluntarily paid the bills himself.
Claimant testified he was “pretty sure” that when he went to Dr. Miller concerning his arm, and on the next visit as well, the doctor asked how his back was feeling, advised him to watch what he did and told him to do sit-up exercises on the floor. However, Dr. Miller testified that he was under the impression he gave some instructions on the back injury but “I don’t have this on my records, though.” Dr. Miller also testified he made no medical report to anyone concerning treatment o£ Riedel’s back other than the one of March 23, 1965, and the record contains no indication that the respondents ever paid for any such treatments given subsequent to March 9, 1965.
The evidence need not further be detailed. What has already been related sufficiently demonstrates support of the findings. Before concluding this opinion, however, we deem it appropriate to comment briefly on certain aspects of the claimant’s argument.
The point is raised that Mr. Riedel did not know that medical treatment was not being furnished by respondents after March 9, 1965, and we believe the record would permit such a construction. However, a similar contention was raised in LaFever v. Olson Drilling Co., 142 Kan. 431, 49 P. 2d 967, where, after stating that the evidence did not warrant a finding that claimant knew medical aid had terminated, the trial court nonetheless concluded that the respondent must show that claimant knew compensation had ceased. In reversing the judgment, this court said:
“In the ease at bar the trial court found that the last medical attendance (treatment) was furnished by the employer on April 22, and there being no dispute that written claim was not made until October 11 it must be held that the claim was not made in the time prescribed by statute, unless it be further held that the employer must show that the claimant knew compensation had ceased. It may be observed that the statute makes no such requirement. The right to recover compensation is purely statutory, and we are not warranted in reading into the statute a condition that is not expressed or necessarily implicit therein. . . .” (p. 433.)
Claimant asserts that he was released to return to light work, and that light work, when prescribed as treatment, will serve to extend the time for serving a claim for compensation. The chief difficulty with this line of argument stems from the fact that Mr. Riedel was not released to perform light work. Dr. Miller’s medical report discloses that Riedel was able to resume regular work on 3-1-65.
In addition to the doctor’s report, the claimant, himself, testified he returned to his regular job for the same employer, and at the same wage rate; that he worked every working day until his second injury; and on returning from that injury he worked every working day to the end of the year, except on Christmas. The cases cited in support of the “light work argument,” simply are not applicable under the circumstances of this case.
Counsel further points out that “treatment” does not necessarily mean treatment by drugs or prescriptions; that treatment may also consist of advice, instructions and corrective exercises. Conceding for the moment that such is true, the argument is irrelevant. According to the evidence in this case, Dr. Miller reported that claimant did not need further medical treatment.
We have carefully examined the authorities cited by claimant. None of them appear relevant to the issues here presented, as they are framed by the findings of the trial court.
It is elementary that in proceedings under the Workmen’s Compensation Act, the burden rests always upon the claimant to establish his right to compensation; it is the claimant who must prove the various conditions on which his right to recover depends. (Thompson v. Heckendorn Manufacturing Co., 189 Kan. 77, 367 P. 2d 72; Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 407 P. 2d 513.)
One of the conditions which must be met before a workman may recover compensation is the filing of a claim therefor within the statutory time. The trial court found that Riedel’s claim was not filed in time. This finding, supported by the record, precludes recovery.
We find no error in the judgment and the same is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant Jack Zumalt has appealed from the sentence imposed upon him as a result of his conviction by a jury of the offense of attempted murder in the first degree.
The issues presented here raise no dispute as to the material facts. A few of them will be briefly stated, however, to indicate the background for the prosecution. The alleged offense occurred at Hutchinson April 16, 1967. The state’s evidence showed that appellant, who had just returned on a weekend pass from the Larned State Hospital where he had been undergoing treatment, while sitting with his wife in an automobile in front of their home, shot his wife with a pistol, wounding her in the right forearm and chest. Appellant then shot himself. Immediately preceding the shooting appellant and his wife had been discussing the possibility of divorce and arguing.
After being charged with the offense, appellant, pursuant to his own request, was examined by a court-appointed commission of three medical doctors. On October 12, 1967, he was found to be sane and able to comprehend his position and make his defense. Jury trial commenced October 16, 1967, and concluded October 18, 1967.
Appellant’s first complaint is based upon the trial court’s ruling sustaining an objection to one question put to a psychologist who testified on appellant’s behalf. The testimony was as follows:
“Q. Would you state your name and occupation, sir?
“A. Earl Rakestraw, psychologist.
“Q. And where are you employed, Mr. Rakestraw?
“A. Lamed State Hospital.
“Q. And where did you receive your degree in psychology, Mr. Rakestraw?
“A. From Pittsburg, Kansas, State College, at Pittsburg, Kansas.
“Q. And how long have you been so employed as a psychologist?
“A. Since August of 1966.
“Q. Mr. Rakestraw, are you acquainted with the defendant, Mr. Zumalt?
“A. Yes, I am.
“Q. And would you explain to the Court and jury the basis of that acquaintance?
“A. Mr. Zumalt, again as has been pointed out or mentioned by Dr. Bacmeister, came to Larned State Hospital to the section where I was employed, to receive care and treatment.
“Q, Have you had opportunities to have conferences with Mr. Zumalt?
“A. Yes, I have.
“Q. And have you had opportunity to observe his behavorial activities there at the institution?
“A. Yes.
“Q. And from your observations and conferences with this defendant have you formed an opinion as to what his probable state of mind was on the 16th of April, 1967?
“Mr. Berkley: Your Honor, I am going to object to this question from this witness as a psychologist, he is not qualified to answer that question.
“The Court: Sustained.”
Appellant contends the court erred in this limitation of the psychologist’s testimony. Assuming, without deciding, that the trial court should have permitted the witness to answer the question propounded, we think, in view of other testimony on the same subject, by the same and other witnesses offered by appellant and received without objection, he suffered no prejudice in the exclusionary ruling.
Following the sustaining of the foregoing objection the witness Rakestraw continued his testimony:
“Q. Mr. Rakestraw, would you explain the nature of psychology to the jury and Court, the nature of your profession?
“A. It is a study of human behavior, a science of human behavior. That is as briefly as I can explain it.
“Q. From this experience and education you have received regarding your studies in this regard, have you been able to observe the defendant and make an analysis of his behavior pattern?
“A. Yes.
"Q. And have you an opinion as to, or have you analyzed, in your opinion, Mr. Zumalt’s behavioral pattern?
“A. Yes.
“Q. If I were to place a hypothetical question to you, such as assuming the defendant did shoot at his wife in a fit of anger or rage, would you have an opinion as to how this behavioral pattern would be analyzed?
“Mr. Berkley: I am going to object to the form of the question.
“The Court: Overruled.
“Mr. Berkley: He is asking for a behavioral pattern.
“The Court: That question can be answered yes or no.
“A. Yes.
“Q. And will you state what that is?
“Mr. Berkley: I object to his giving an opinion on this matter, as not being qualified.
“The Court: Overruled.
“A. That in this hypothetical situation the behavior would be based more on the impulse or emotion than on the intellectual processes.”
Appellant called another witness, a clinical psychologist at Larned State Hospital, who testified he had treated appellant prior to April 16, 1967, and in his opinion appellant had great difficulty in controlling his impulses; this would be especially true when appellant was very angry. He further testified he did not feel he could categorize appellant as a normal person.
A psychiatrist who had treated appellant at the hospital testified upon appellant’s behalf he believed appellant was prone to act on impulse but that it was possible for him to know the difference between right and wrong when so acting.
The rule is that, generally, any error in the exclusion of evidence is cured when the same, or substantially the same, evidence is, through the same or other witnesses, subsequently admitted (5A C. J. S., Appeal & Error, § 1753; 5 Am. Jur. 2d, Appeal and Error, § 806; 4 West’s Kansas Digest, Criminal Law, 1170 [2]).
We think the other evidence received without objection covered the matter sought to be proved by the question to which objection was sustained, making the latter cumulative in nature. No offer of proof which would demonstrate otherwise was made. Therefore any error in the ruling complained of is harmless and will not justify reversal.
Three previous convictions of felony were shown, by reason of which appellant was sentenced under the habitual criminal act to imprisonment for a term of not less than twenty-five years. One of these was a 1949 conviction in the district court of Sedgwick county, Kansas, for assault with intent to maim, for which he was sentenced to a term of not less than one year nor more than five years. Appellant was imprisoned under this sentence. On January 5, 1953, the governor of Kansas granted him a pardon to take effect ten days prior to the expiration of his sentence. This is what is known as a citizenship pardon, authorized by K. S. A. 62-2222, and is granted on account of good conduct for the purpose of restoring a prisoner’s civil rights. Appellant contends that by reason of the pardon this conviction should not have been used against him for sentencing under the habitual criminal act. This court, in accord with a majority of the jurisdictions which have considered the question (31 A. L. R. 2d 1186), has ruled adversely to appellant’s contention. Our rule is that the record of a prior felony conviction may be used to increase the sentence imposed for a subsequent felony conviction in accord with the habitual criminal act despite the fact the prisoner received a pardon as to the prior conviction (Murray v. Hand, 187 Kan. 308, 356 P. 2d 814; State v. Tague, 188 Kan. 462, 363 P. 2d 454; Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978; see also Johnson v. Crouse, 224 F. Supp. 864, affirmed in 332 F. 2d 417).
This same Sedgwick county conviction was used in 1958 to enhance a sentence imposed upon appellant by the district court of Reno county, Kansas, as a result of appellant’s conviction in that court of the offense of robbery in the first degree. Appellant now contends the same conviction ought not be used against him under our recidivist statute more than one time. Here again this court has ruled adversely to appellant’s contention. In Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, it was stated, in effect, that a prior felony conviction may be used more than once to enhance a sentence imposed under the habitual criminal act for a subsequent conviction.
This disposes of all points briefed or argued by appellant, and his conviction and sentence are affirmed.
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Per Curiam:
On July 29, 1968, and on August 21, 1968, Dale A. Spiegel filed his written motion requesting that the Supreme Court accept the tender of the certificate to practice law in the State of Kansas heretofore issued to him on June 25, 1952, and that his name be stricken from the roll of attorneys of the Court. Attached to the motion was the duly executed affidavit of Dale A. Spiegel stating the certificate to practice law before the Supreme Court and all inferior courts of the state of Kansas had been misplaced, lost, stolen or destroyed; that he is no longer practicing law or residing in the State of Kansas, and that he has no future intention, desire or purpose to seek replacement of the certificate or to practice law in the courts of the State of Kansas.
It Is by the Court Considered and Ordered that the motion and affidavit of Dale A. Spiegel be accepted as the tender of his certificate to practice law, and the clerk of this court is ordered and directed to consider such motion and affidavit as the tender in absentia of such certificate, to mark the same void and to strike Dale A. Spiegel’s name from the roll of attorneys. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of the theft of thirteen head of Holstein heifers resulting in a sentence for grand larceny.
Repetition will be avoided if we present the pertinent facts as we discuss the issues raised by appellant.
The appellant first contends that the trial court erred in failing to grant a continuance of the trial of the case.
We have adhered to the very general rule that the granting of a continuance in a criminal prosecution rests largely in the discretion of the trial court. Its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to such an extent that the appellant’s substantial rights have been prejudiced. (State v. Smith, 173 Kan. 807, 252 P. 2d 917; State v. Morrow, 179 Kan. 63, 292 P. 2d 1094; State v. Earley, 192 Kan. 144, 386 P. 2d 221; State v. Brown, 193 Kan. 654, 396 P. 2d 401; State v. Dickson, 198 Kan. 219, 424 P. 2d 274.)
It appears that the appellant was charged by information on November 14, 1966. At the preliminary hearing the appellant’s retained counsel examined the state’s witnesses. On January 3, 1967, the appellant appeared with his retained counsel, waived arraignment and formal reading of the information. The case was set for trial on February 7, 1967. On January 31, 1967, appellant’s counsel announced to the court that he was withdrawing from the case. The court then appointed the same counsel to represent the appellant. Appointed counsel then made an oral motion for a continuance which was denied.
The day before the case was set for trial the appellant filed a written motion for a continuance suggesting that—
“. . . the defendant or someone on his behalf had been unable to find or discuss a possible alibi plea with possible witness in Martin City, Missouri, where the defendant claimed his truck had been for a considerable period of time between the hours of 4:00 p. m. on November 14, 1966, and 8:00 a. m. on November 15, 1966, and during which period of time the thirteen (13) Heifers of Arlon Jones were allegedly stolen. . . .”
The trial court overruled the motion stating:
“Well, I think that this case was set on January 3 when we opened the Term of Court for the 7th day of February; and I think we should go ahead and proceed with trial. There is no real suggestion that any delay would actually produce any certain witnesses or any [suggestion], the defendant would be any better prepared at a later date than he is at the moment.”
We are forced to agree with the trial court. The facts speak for themselves and need no elaboration. No attempt has been made by the appellant to show that he was prejudiced by the denial of the continuance. Under the circumstances we find no basis for concluding that the trial court abused its discretion.
The appellant further contends that the evidence was insufficient to support the verdict. He suggests that no one observed the appellant at the scene of the theft and calls our attention to the rule that for circumstantial evidence to support a conviction it must be incompatible with any reasonable hypothesis except guilt. It is the function of the jury, not of this court on review, to weigh the evidence and pass upon the credibility of the witnesses. When considering the sufficiency of circumstantial evidence to sustain conviction of a crime, the question before this court on appeal is not whether the evidence is incompatible with any reasonable hypothesis except guilt because that was a question for the jury and the trial court. The function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Mitchell, 181 Kan. 193, 310 P. 2d 1063; Smith v. Crouse, 192 Kan. 171, 386 P. 2d 295; State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039.)
We will review but a limited part of the evidence.
The defendant was the owner of a red Ford truck for which a license had been obtained in both Missouri and Kansas under the name of Oliver Nicolay. The tires of the truck were identified as the same make as those leaving tracks in the pasture where the heifers were stolen.
The gate post leading into the pasture had been struck leaving red paint and a scrape mark. The right narrow running board of appellant’s red truck was found to be mashed and bent. Seven of the stolen heifers were sold at the Mound Grove Livestock Auction, Mound Grove, Missouri, at which time the appellant claimed ownership but gave his name as Bob Meyer. A check was issued to Bob Meyer in the amount of $1,037.26. On the same day, November 17, 1966, the appellant deposited the check in the Topeka State Bank under the name of Bob Meyer.
The other six heifers were sold by the appellant on November 28, 1966, at the Licking, Missouri livestock auction and a check made payable to him in the amount of $913.52. The thirteen heifers were later identified by the owner and returned to him. The appellant was definitely identified as the participating party in all of the above transactions.
It would serve no useful purpose to review the evidence in more detail. We must conclude that there was sufficient substantial evidence to support the verdict. (State v. Gregory, 191 Kan. 687, 383 P. 2d 965; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; State v. Walker, 198 Kan. 14, 422 P. 2d 565.)
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiffs bring this action seeking an easement and right of way by necessity across land owned by the defendants. The trial court denied plaintiffs the relief for which they asked and entered judgment for the defendants. Plaintiffs have appealed from that judgment.
There is no dispute as to the facts, for the defendants, with one exception which we think immaterial, have adopted the statement of facts contained in the plaintiffs’ brief.
John Howard, at the time of his death in March, 1956, owned the following land in Sumner County:
“Lot One (1), Section Seven (7), Township Thirty (30) South, Range Two (2) East of the Sixth P. M. and
“Lots Three (3), Four (4), Seven (7) and Eight (8), Section Six (6), Township Thirty (30) South, Range Two (2) East of the Sixth P. M.”
At the closing of Mr. Howard’s estate in May, 1957, this real estate was assigned to his heirs. On September 10, 1957, the heirs offered the land for sale at public auction. At the sale, plaintiffs bought a one-half interest in Lot One (1), Section Seven (7), and Harry R. Horner and wife purchased the other half interest. Subsequently Harry and his wife conveyed their half interest to these plaintiffs who now own the entire interest in Lot One (1).
At the same public sale, the defendants bought Lots Three (3), Four (4), Seven (7) and Eight (8), Section Six (6), and have continued to own them. Lots Three (3) and Four (4) are not involved in this controversy and will require no further mention. The three lots which are involved in this lawsuit will hereafter be designated simply as Lots 1, 7 and 8.
Lot 1, now owned entirely by the plaintiffs, is landlocked. It is bounded on the north by Lots 7 and 8, owned by the defendants, on the south and west by the Arkansas river, and on the east by land belonging to strangers. There is no public road providing access to plaintiffs’ Lot 1. Old highway K-53 is located approximately one-half mile north of plaintiffs’ property, ending at the northeast comer of Lots 7 and 8. A north-south road is approximately three-fourths (%) mile east of Lot 1, but lands owned by strangers intervene.
During his lifetime, Mr. Howard leased a part of all three lots to a sand company for removal of sand. In 1949 a way existed from old highway K-53 south across Lots 7 and 8 to Lot 1, which way was used by Howard and his lessees and licensees to reach Lot 1.
Shortly after the defendants bought Lots 7 and 8 in 1957 they began removing sand therefrom in their own behalf and opened a new way of access along the extreme edge of the two lots with a gate on the north line of their property. The defendants gave plaintiffs a key to the lock securing the gate and thereafter plaintiffs and their invitees and licensees used both the new and old access ways with the defendants’ knowledge and consent until the defendants closed the old way in January, 1965. The plaintiffs continued to use the new access, with knowledge and consent on the part of the defendants, until the defendants changed the lock on the gate in April, 1965. At that time the defendants refused plaintiffs the use of the new access way and have continued in their refusal. Hence this lawsuit.
The case was tried to the court, which made a number of factual findings, only one of which need be set forth in detail. The court’s final finding recites:
“Plaintiffs have an adequate remedy at law, pursuant to K. S. A. 68-117, to gain access to a public highway either to the north over defendants’ land, or to the east, or east and then north over land of other owners. Therefore, their prayer in equity for establishment of a roadway or right-of-way easement by implication over defendants’ land must be denied. Had only the land of plaintiffs been sold by the Howards and they, the Howards, had retained the frontage property, then the case law suggested by plaintiffs could be applicable.”
In strict accord with the above finding of fact the trial court entered the following conclusion of law:
“Plaintiffs have an adequate remedy at law under K. S. A. 68-117, and from the evidence presented in the record, equitable relief, as prayed for, must be denied; and it is so ordered and decreed; and judgment is accordingly entered for defendants herein. . . .”
This is the judgment to which the plaintiffs take exception.
Essentially the plaintiffs raise two points on appeal: 1. That the remedy available under K. S. A. 68-117 is not exclusive or mandatory, but is optional under the circumstances. 2. That they are entitled to a way of necessity across the defendants’ property.
Tinning first to the general area of easements or ways created of necessity, we note that Kansas has long given recognition to the common-law rule, generally followed by the courts of this country, which implies a way of necessity where a grantor either conveys or retains a portion of his lands which otherwise would be inaccessible. (Mead v. Anderson, 40 Kan. 203, 19 Pac. 708.) Speaking in Mead, this court said:
“. . . The rule is fundamental that where one purchases land from another, he purchases also the right of access thereto. (Citing cases.) And this right cannot be taken away when once obtained. . .
The rule is well phrased, and the reasoning which undergirds the same is simply explained in the early and frequently cited case of Collins v. Prentice, 15 Conn. 39:
“It is well settled, as a part of the common law of England, that if a man having a close, to which he has no access, except over his other lands, sell that close, the grantee shall have a way to it, as incident to the grant; for without it, he cannot derive any benefit from the grant. This rule has been established for more than two centuries, and seems not to have been questioned on the trial. (Citing cases.) And although doubts have formerly been expressed upon the subject, it seems now to be as well settled, that, if the grantor had reserved that close to himself, * and sold his other lands, a right of way would have been reserved. (Citing cases.)
“The way, in the one case, in contemplation of law, is granted by the deed; and in the other case, reserved. And although it is called a way of necessity, yet in strictness, the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties. For the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties, (pp. 43, 44.)
For other Kansas cases where the rule has been applied, see Moll v. Ostrander, 124 Kan. 757, 262 Pac. 592; Wilkins v. Diven, 106 Kan. 283, 187 Pac. 665; Van Sandt v. Royster, 148 Kan. 495, 83 P. 2d 698.
The Collins case makes it clear that an easement of necessity may arise, under appropriate circumstances, either in favor of land conveyed by the grantor or for the benefit of land retained by him. Kansas has adopted the same view. In Van Sandt v. Royster, supra, where a sewer easement was claimed across property conveyed by a common grantor, this court stated:
“We are inclined to the view that the circumstance that the claimant of the easement is the grantor instead of the grantee, is but one of many factors to be considered in determining whether an easement will arise by implication. An easement created by implication arises as an inference of the intentions of the parties to a conveyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance. The easement may arise in favor of the conveyor or the conveyee. . . .” (pp. 500, 501.)
Certain language found in the court’s finding suggest that the situation here would be different had the Howards retained Lots 7 and 8 after selling Lot 1 to the plaintiffs. We are forced to disagree. The parcels of land conveyed in the Collins case were part of an estate and were sold by the executor at public sale for payment of debts. In Ferguson v. Ferguson, 106 Kan. 823, 189 Pac. 925, this court recognized that ways of necessity might arise in connection with lands set aside or allocated in partition.
Neither would the sequence in which these lots were sold be of significance. If Lot 1 was first sold, an easement would then pass to plaintiffs over Lots 7 and 8. If Lots 7 and 8 had been sold first, an easement therein would be reserved in the Howards, which also would pass to the plaintiffs on the sale of Lot 1. In 25 Am. Jur. 2d, Easements and Licenses, § 34, pp. 447, 448, the rule is thus expressed:
“A way of necessity is an easement founded on an implied grant or implied reservation. It arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers. In such a situation there is an implied grant of a way across the grantor’s remaining land to the part conveyed, or conversely, an implied reservation of a way to the grantor’s remaining land across the portion of the land conveyed. The order in which two parcels of land are conveyed makes no difference in determining whether there is a right of way by necessity appurtenant to either.” (Emphasis supplied.)
The subject of easements, including those arising by implication, was treated rather exhaustively in Smith v. Harris, 181 Kan. 237, 311 P. 2d 325. The inquiring reader is referred to the opinion in that case for a lucid and learned discussion delivered through themedium of Mr. Justice Schroeder.
The point most open to debate concerns the effect of K. S. A. 68-117 on easements implied from necessity, necessity constituting an indispensable part of the rule. (Smith v. Harris, supra.) The statute provides in pertinent part:
“. . . Whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road, and one road only, through some portion of the adjoining lands. The petition shall set forth the use and purposes of such proposed road. Upon presentation of such petition, the commissioners shall proceed in accordance with the provisions of the act of which this is amendatory to lay out such road, make returns of plats, and allow damages, if any should be held or allowed: Provided, Said road shall not be less than forty (40) feet nor more than one hundred (100) feet in width and shall be laid out upon the quarter or quarter-quarter section lines when practicable.
“And the said road when so ordered by the board of county commisisoners shall be platted and recorded in the office of the register of deeds and shall become a public way, subject to restrictions contained in the petition: And provided further, That the owner or owners, their grantees, successors or assigns, of the land specifically benefited by the establishment of such public road, shall forthwith pay all expenses of establishing said road, including all damages, if any should be held or allowed and thereafter forever maintain and keep the same in repair and without any expense or liability to the township or other municipality in which such road is so laid out and established.”
It is contended by the defendants that the statute provides the sole means of relief from the quandary in which the plaintiffs find themselves, and such was the view taken by the trial court. The plaintiffs paraphrase the issue in this manner: Is K. S. A. 68-117 an exclusive or mandatory remedy?
This is a question which has never been answered by this court, although the statute is of ancient lineage. Mention of the statute is found in Mead v. Anderson, supra, decided in 1888, and in Chinn v. Strait, 173 Kan. 625, 250 P. 2d 806, which was decided in 1952. In neither case did the court consider it necessary to pass upon the effect of the statute.
Among other courts which have faced similar situations there is diversity of opinion as to extent of the necessity required before an easement or way of necessity can be implied. The divergence of views is mirrored in the following passage from 25 Am. Jur. 2d, Easements and Licenses, § 37, pp. 450, 451:
“There is a conflict of authority as to the degree of necessity required before a way of necessity may be implied. Some authorities maintain that a reasonable necessity is sufficient, but other authorities require strict or absolute necessity. In any case, it appears that a way of necessity must be more than one of mere convenience.
“The reasonableness of the expense of obtaining a way is made the test of necessity in some cases, to be determined by comparing the cost of creating the way with the value of the property. Under this test a way of necessity will not be implied if the claimant can obtain a means of access to his land at reasonable expense. However, it has been held that the implication of a way of necessity should not be denied merely because it is possible to procure a right of way by condemnation under a statute or to procure a highway by application to, and action by, the public authorities.”
The case of Hellberg v. Coffin Sheep Co., 66 Wn. (2d) 664, 404 P. 2d 770 bears much similarity to the instant action, the state of Washington having a statute extending the right of condemnation in cases of landlocked property. In an opinion upholding a way of necessity, the court said:
“An easement of necessity is an expression of a public policy that will not permit property to be landlocked and rendered useless. In furtherance of that public policy, we give the owner, or one entitled to the beneficial use of landlocked property, the right to condemn a private way of necessity for ingress and egress. RCW 8.24.010.
“Condemnation, however, is not necessary where the private way of necessity is over the land of the grantor or lessor of the landlocked property.” (pp. 666, 667.)
In Blum v. Weston, 102 Cal. 362, 36 Pac. 778, the defendants claimed an easement by necessity in land owned by the plaintiffs. The respective parties claimed under grants originating from grantors to whom lands once held in common had been allotted in partition proceedings. In deciding that the defendant was entitled to a way of necessity, the court said:
“That defendant could have a way by condemnation under the statute does not affect his right. (Citing cases.)” (p. 369.)
On this point, the California court cites Collins v. Prentice, supra, where a Connecticut statute authorized select-men to lay out private ways. In response to a contention that this statute did away with the common law rule, the Connecticut court stated:
“There is certainly nothing in the statute, which in terms changes the common law upon this subject. And we think there is nothing arising by implication. Private ways may be very needful and proper which are not strictly ways of necessity. . . .” (p. 45.)
On the other side of the coin is a Montana case, Simonson v. McDonald, 131 Mont. 494, 311 P. 2d 982, holding there is no implied reservation or grant of easement by necessity where a constitutional provision authorizes the opening of a private road by means of condemnation proceedings. The force of this case is somewhat lessened by Thisted v. Country Club Tower Corp., 146 Mont. 87, 405 P. 2d 432, where the court refused to apply the rule to a differing factual situation. The Simonson case was followed in State v. Black Bros. et al., 116 Tex. 615, 297 S. W. 213, 53 A. L. R. 1181.
Under the conditions obtaining in this case we incline to the view that K. S. A. 68-117 does not preclude plaintiffs from asserting their right to a way of necessity over the defendants’ land. There was unity of title to all three lots during Mr. Howard’s lifetime and until their separation after his death. The way across Lots 7 and 8 to Lot 1 had long been used by Howard and his lessees to reach Lot 1, and there is nothing to justify any assumption that it was traveled surreptitiously or was not visible to all who could see.
For more than six years after the defendants bought their lots, they permitted plaintiffs to use the old way without objection. After they opened a new way and put a lock on the gate, the defendants gave plaintiffs a key to the gate and thereafter plaintiffs used both ways for some five months. We do not, of course, mean to imply that plaintiffs thereby acquired any right by prescription, but we think there is every presumption that an easement of necessity came into being in plaintiffs’ favor at the time the tracts were separately conveyed.
Even though plaintiffs might have invoked the provisions of K. S. A. 68-117 to open a road to their property, we think this was not required of them. A proceeding under this statute would entail great and continuing expense. The requirement that one who proceeds under the statute must pay the entire expense of establishing and forever maintaining the road, which must be at least 40 feet wide, together with all damages allotted in connection therewith, plus the fact that the road when completed will become a public road, imposes too great a burden to justify us in saying that plaintiffs’ right to their implied easement no longer exists.
The analogous case of Sample v. Jefferson County, 108 Kan. 498, 196 Pac. 440 supports this view. In Sample, the plaintiffs sought to enjoin the county from removing a bridge which would have resulted in loss of ingress to and egress from the plaintiffs’ farm. The county contended that the plaintiffs could provide a means of access pursuant to K. S. A. 68-117, and thus had an adequate remedy. This court, in allowing the injunction, rejected the county’s contention, pointing out that should plaintiffs proceed under the statute they would be providing the public and themselves a road, at their own expense, the upkeep of which would likewise be at their expense as long as they or the public desired to use it.
Cases are cited by the defendants holding that an owner may not acquire an easement over his own land. The cases are not in point. A way of necessity is sometimes referred to as a quasi easement. It does not arise, in any event, nor is it to be implied, until lands owned by a common grantor are separated.
The defendants say that plaintiffs have not shown themselves entitled to equitable relief. We entertain a contrary view. The defendants have designated a way across their land which plaintiffs have used in the past, and it would seem that the trial court, in the exercise of its equitable powers, might protect its continued use in a manner equitable to all parties within the bounds expressed in this opinion.
This judgment is reversed and the cause remanded with directions to the trial court to proceed accordingly. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for trespass and the cutting of trees on the appellants’ land.
On July 25, 1964, the employees of C. Nauman Lumber, Inc., through a mistake in location, entered upon an 80 acre tract of land belonging to the plaintiffs and cut down three black walnut and three cedar trees.
On July 15,1966, the plaintiffs filed an action for damages naming Clarence G. Nauman, an individual, d/b/a Nauman Lumber Company, as defendant. On October 10, 1966, some two years and two months after the cutting of the trees, the plaintiffs requested permission to amend the petition making C. Nauman Lumber, Inc. an additional party defendant. On October 31, 1966, the district court granted permission to amend, and the amended petition was filed on November 9, 1966, making the C. Nauman Lumber, Inc. an additional party defendant. The amended petition also increased the amount of damages claimed.
The answer of C. Nauman Lumber, Inc. alleged, among other things, that;
“. . . said alleged cause of action as against this defendant is barred by the statute of limitations as set forth in K. S. A. 60-513.”
The case was tried to the district court. Judgment was rendered in favor of the plaintiffs and against the defendant, C. Nauman Lumber, Inc. in the sum of $850, and costs. The action as to Clarence G. Nauman, individually, was dismissed.
The plaintiffs, being dissatisfied with the amount of the judgment, perfected this appeal, but they did not appeal from the dismissal of the action against Clarence G. Nauman, individually. The plaintiffs contend the district court erred in its measure of damages, and in excluding certain evidence under the rule used for measuring damages.
The defendant, C. Nauman Lumber, Inc., cross-appealed and contends the district court erred in permitting it to be brought in as a party defendant more than two years after the trespass occurred, and in rendering judgment against it.
It is conceded that the two year statute of limitations (K. S. A. 60-513) applies to this action.
We first consider the appellee and cross-appellant’s contention. If it is sustained, all other issues become moot.
The appellants, cross-appellees, suggest that the district court had discretionary authority to permit the addition of C. Nauman Lumber, Inc. as a party defendant under the provisions of K. S. A. 60-215 (c) which reads:
“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.”
We do not understand K. S. A. 60-215 (c) to so apply to parties. Until such time as a person is actually made a party defendant there can be no claim or defense arising “out of the conduct, transaction, or occurrence set forth or attempted to be set forth” as to him. It is the intention of the statute of limitations that a party to be bound must have a claim filed against him or attempted to be filed against him — not someone else — before the expiration of the period provided in the statute.
In Skeen v. Sisters of St. Joseph, 194 Kan. 212, 398 P. 2d 587, we held:
“The filing of a petition against A reciting facts which would authorize an action to be maintained against B will not toll the statute as to B, if he is not made a defendant until after the statute has run. (Following Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167, and Wyckoff v. Bennett, 191 Kan. 180, 380 P. 2d 332.)” (Syl. ¶ 1.)
It will be noted that the decision in the Skeen case was decided more than a year after K. S. A. 60-215 (c) took effect. We do not understand that this statute was to be so construed as changing the import of our statute of limitations.
The appellants direct our attention to Heath v. Martin, 187 Kan. 733, 359 P. 2d 865. The case is not helpful to the appellants. Under the facts in the Heath case, the plaintiff, her counsel, the court and even counsel for the defense were misled and lulled into a false sense of security by the real party in interest during the trial of the action.
Following Skeen v. Sisters of St. Joseph, supra, we conclude that the filing of an action against Clarence G. Nauman, individually, did not toll the statute against C. Nauman Lumber, Inc., where it was not made a party defendant until after the statute of limitations had run.
The judgment is reversed with directions to the district court to enter judgment in favor of C. Nauman Lumber, Inc. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court amending the sheriffs return of service on an execution. The basic action out of which it arose was for the collection of money on a series of negotiable freight bills. Judgment was entered after a hearing on the merits for Transport Clearing House, Inc. (plaintiffappellee) on the 10th day of December, 1964, in the sum of $2,933.98. No appeal was taken.
On the 24th day of February, 1966, the appellee filed the last of a number of executions upon this judgment. The sheriff made two attempts to obtain service upon G. T. Rostock, d/b/a Articaire Manufacturing Company (defendant-appellant). The second attempt was two days after the first. Return of the execution was made on the 6th day of April, 1966, and reads as follows:
“The State of Kansas, County of Wyandotte, ss.
“Received this Execution on the 24th day of February, 1966, at 10:00 o’clock A. M.
“Personally served G. T. Rostock, Tuesday, March 8, 1966, at Articaire, Inc., 1900 Olathe Boulevard, for execution upon his shares of stock in Articaire, Inc. Directed him to produce same on Thursday, March 10, 1966 at 9:00 o’clock A. M. at 1900 Olathe Blvd.
“Returned on Thursday, but doors were locked and cardboard was placed over the windows.
“Unable to obtain the stock certificates.
“On the 6th day of April, 1966.
/s/ By V. Sauceda, Deputy”
(Emphasis added.)
The foregoing sheriff’s return of service was the record the appellee’s motion sought to amend. The trial court after hearing the matter entered an order granting the appellee’s motion. The journal entry, in material part, recites:
“And the court upon presentation of evidence and statements of counsel and being fully advised in the premises, finds:
“That plaintiff on February 24, 1966, caused to be issued an execution upon defendant at his offices at 1900 Olathe Boulevard. That on Monday the 7th day of March, 1966, Vincent Sauceda then duly appointed, qualified and acting Deputy Sheriff in and for Wyandotte County, Kansas, served upon defendant herein the said execution directing defendant to produce certain shares of stock at 9 a. m. on Wednesday, March 9, 1966 at 1900 Olathe Boulevard.
“That on Wednesday March 9, 1966, at or about 9 a. m. the said Deputy Sheriff returned to the said premises to obtain delivery of the said shares of stock. That defendant did not produce the said stock nor did he show himself to the said Deputy Sheriff.
“That the Return of Service of the said Execution in its present form indicates that the dates of Service of the said Execution were March 8, 1966 and March. 10, 1966 respectively.
“That the dates as they now appear on the said Return of Service are incorrect and should be changed in accordance with the findings of the Court to read Monday, March 7, 1966 and Wednesday, March 9, 1966.”
The foregoing amendment to the sheriff’s return of service was made pursuant to K. S. A. 60-313. It reads:
“At any time in his discretion and upon such terms as he deems just, the judge may allow any process, return or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.”
The question presented by this appeal is whether the trial court abused the exercise of its power of discretion in allowing the sheriff’s return of service to be amended.
On Wednesday, the 9th day of March, 1966, long prior to the amendment of the return in question, the appellee filed an affidavit and citation in contempt against Rostock upon which process was issued. This resulted in Rostock’s incarceration on the 17th day of March, 1966, when he was booked and set free on bond. He was subsequently purged of contempt after a hearing on the 29th day of June, 1966, in the district court of Wyandotte County, Kansas.
On the 27th day of January, 1967, more than twenty-four months after the judgment, the appellant paid the appellee a compromise sum in full satisfaction of the judgment and the same was released on the records of the clerk of the district court of Wyandotte County. Thereafter on the 16th day of February, 1967, an action was filed by the appellant against the appellee in the district court of Johnson County, Kansas. The sheriff’s return here in question forms a part of the record that is basic to the above action of the appellant in Johnson County for abuse of civil process and malicious prosecution. The appellant in his brief states:
“. . . In the instant case, the applicant, although not the sheriff, is seeking to avoid the effect of a return showing that applicant-appellee and its attorney did file an affidavit and citation in contempt against appellant prior to the demand date set forth on the return, such evidence going to show malice of the parties defendant in the connected suit.”
The appellee filed its motion to amend the return of service and served a copy on counsel for the appellant on the 11th day of April, 1967. It was pursuant to the hearing on this motion that the trial court entered its order amending the return of service on the 2nd day of June, 1967.
Appeal has been duly perfected raising the question heretofore indicated.
The appellee contends that on the 27th day of January, 1967, all substantive issues in this case were made moot by the appellant’s satisfaction of the judgment. It is argued the appellant has made no showing of liability upon the deputy sheriff, Mr. Sauceda, for none could exist at the time the motion was filed, four months after the judgment was satisfied. (Citing, Carr v. Diamond, 192 Kan. 377, 388 P. 2d 591.)
The short answer to the appellee’s argument on this point is that if the issues on appeal to this court are moot by reason of the satisfaction of the judgment, they were likewise moot when the appellee filed its motion to amend the return in the district court of Wyandotte County. Viewing the whole case, we cannot say the issue presented here on appeal is moot.
The appellee also contends the appeal has no standing in this court because it does not fall within the scope of K. S. A. 60-2102.
Of the four grounds set forth in this statute for prosecuting an appeal as a matter of right, only K. S. A. 60-2102 (a) (4) could have application. The question is whether this is a “final decision” in the action. While it is true the judgment in this action has been satisfied, the order in question was entered after the satisfaction of the judgment, but it would fall within the plain meaning of the term “final decision” in the action insofar as any rights of appeal are concerned. In Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637, it was observed that cases defining a “final order” under G. S. 1949, 60-3302 were no longer binding with the advent of the new code. The court there recognized that no attempt was made to define the word “final” and confuse the issue in 60-2102, supra. There the court said the word is to be given its ordinary meaning.
Our disposition of the appeal in this case requires an analysis of the matters presented to the trial court at the hearing on the motion to amend the return of service, and the manner in which such matters were presented.
The appellee, when the motion was filed with the trial court, filed a supporting affidavit by Vincent Sauceda, the deputy sheriff who made the return in question. The affidavit stated the dates of the service thereof as they appeared in the return of service were erroneous. Thereafter, and within time before the hearing on the motion, Rostock filed a counter affidavit which in substance contradicted the affidavit of Sauceda, thereby framing the issue to be presented to the trial court at the hearing.
We are informed by the appellant that a complete record of the argument and “evidence” presented by the appellee in support of the motion to amend the return is set forth in the record on appeal, and this is not disputed by counsel for the appellee.
The matter was presented by counsel for the appellee in the form of argument to the trial court. He said:
“. . . It appears in the court -file, there is a sworn affidavit on the part of Mr. Sauceda the Deputy Sheriff, who I wanted to have here present this morning to testify in person, but as the Court knows, Mr. Sauceda broke his leg and is unable to be here, but this is his affidavit here, sworn to by him, setting out the facts, the reasons why we are requesting the change, and that is, that the man here, if Your Honor will recall, we had several hearings on this matter in the nature of a contempt hearing, on the failure of Mr. Rostock to produce certain shares of stock after the execution was filed.” (Emphasis added.)
Thereupon counsel for the appellee proceeded to relate testimony given by Mr. Sauceda in the contempt proceeding (to which reference will hereafter be made). Counsel for the appellee proceeded:
“. . . Now I have subpoenaed the Sheriff’s office to produce for the Court’s inspection the Sheriff’s return book, which as the Court is aware every process server keeps a record of every process serving he makes. Mr. Kreiger, Deputy Sheriff, has responded to the subpoena duces tecum served upon the Sheriff’s office. Now, Mr. Kreiger, is that the book you have in your hand the Sheriff’s Day Book?”
Mr. Kreiger was never sworn, but responded that it was the day book used by Mr. Sauceda as deputy sheriff that he had in his hand, and that it pertained to the dates in question. Thereupon counsel for the appellee proceeded to point out various entries in the day book to the trial judge. The record then discloses the following:
“Mrs. Jordan: I object, Your Honor; I request permission to examine the exhibit.
“Mr. Powers: I haven’t put it in evidence yet; I was just explaining it to the Judge. If the Court will examine Mr. Sauceda’s evidence, it explains that an erroneous date was put on the service, because Mr. Sauceda, because of inadvertence on his own part, neglected to check back on his day book as to the time he returned the service. He subsequently examined his day book, this book, which is a continuing record, made at the time, and this book indicates, as the Court can see upon examination, that the particular item was served upon the Sheriff’s office on the 24th day of February, 1966, . . .” (Emphasis added.)
Counsel for the appellee then proceeded to point out further entries in the day book to the court.
The substance of the argument made by counsel for the appellee to the court was that the sheriff’s return book disclosed the service was made on Monday, March 7, 1966, followed by a second service on Wednesday, March 9, 1966. The concluding statements made by counsel for the appellees were as follows:
“We have filed with the Court also—
“Mr. Edward H. Powers, Sr.: We didn’t file it.
“Mr. Powers: Well, our research has indicated that under the Kansas cases on this subject, the material that was referred to in this case refers only to and has a bearing upon the case at hand, and not some other lawsuit which may have been previously or subsequently filed. This matter having been thoroughly settled, and the matter is fully satisfied, in our estimation there is no prejudice in this case that would result from having the record amended to reflect in fact what are the correct dates in question, as evidenced by the Sheriff’s return book made by Mr. Sauceda, and we therefore request that the process return of service dated March [April] 6, 1966, be amended to reflect that the initial service was made on March 7, 1966, and the second service made at [on] March 9, 1966, both at approximately 9 a. m. I leave this for the Court’s inspection.” (Emphasis added.)
Viewing the entire record, it is speculative what counsel for the appellee left for the court’s inspection. (1) Was it a document which evidenced the filing of the Johnson County action? Counsel did refer to “some other lawsuit” and argued the matter of prejudice. (2) Was it Sauceda’s affidavit? (3) Or was it the deputy sheriff’s day book? Whatever it was the matter was never formally offered or received in evidence.
The record then discloses the trial court addressed counsel for the appellant: “Mrs. Jordan?” Was counsel for the appellant at this time expected to make objections for the record as to the manner in which counsel for the appellee presented his motion, or was she to proceed with her presentation?
Counsel for the appellant proceeded forthwith to present her evidence in support of the return filed by the deputy sheriff. The return itself as executed was placed in evidence.
Sworn testimony was presented by G. T. Rostock to the effect that he was present in his office on Wednesday morning, March 9, 1966, at 9:00 a m. and no attempted service was made by the deputy sheriff, Mr. Sauceda, on that date; and that he was absent Thursday morning from the office which would correspond with the original return filed by the deputy sheriff disclosing that no one was found on Thursday, March 10, 1966. His testimony was corroborated by exhibits of payroll records properly offered and received in evidence. These records were kept as required by government contractors to disclose time spent on performance contracts.
Sworn testimony of Dale E. Richmond was presented to the effect that he was employed by Articaire Manufacturing Company, and was called from the shop to the office on March 8, 1966, to witness the signature of Rostock, and his acceptance of service. He saw the deputy sheriff actually put the date and time on top of the execution (“3-8-66, 9:20 a. m.”).
The parties all concede the second attempt at service was made two days after the first attempt.
The transcript of the contempt proceeding was introduced into evidence without objection, wherein detailed examination was made of the deputy sheriff, Mr. Sauceda, concerning the return date of the service. At the contempt hearing Mr. Sauceda testified:
“Q. And isn’t it true from your Sheriff’s writ, that your exact directions to Mr. Rostock was to have the stock available Thursday the 10th day of March?
“A. I don’t recall what the date was, but it was on a Thursday when we went back.
“Q. I believe the photostatic copy of your return — (hands witness a file, open.)
“A. The 6th day of April.
“Q. No, up here, saying when you will have it back.
“A. Yes, that’s right.
“Q. In other words, he was ordered to deliver up the stock, on plaintiff’s attorney’s direction to you—
“A. That’s right.
“Q. —Thursday the 10th day of March?
“A. Yes.”
At no time did counsel for the appellee, who was present at the contempt hearing, challenge these dates in cross-examination or contend they were erroneous.
K. S. A. 60-313 permitting the amendment of process, return or proof of service closely approximates Federal Rule No. 4 (h) (Fed. Rules Civ. Proc. rule 4 [h], 28 U. S. C. A.) and confers upon the judge the same general powers as does Federal Rule No. 4 (h). (4 Vernons Kansas Statutes Annotated, Code of Civil Procedure, §60-313, f 313.1, p. 170.) For a general discussion of the powers conferred upon a trial judge to permit amendment under this section, see 1 Barron and Holtzoff, Federal Practice and Procedure, § 186, p. 748.
Under the old code provision was made for the amendment of pleading and process in G. S. 1949, 60-759. The new rule (60-313, supra) does not vary materially from the old rule, and decisions pertaining to the former practice will continue to have authoritative impact upon the construction of the new rule. (Gard, Kansas Code of Civil Procedure Annotated, § 60-313, p. 354.) The prior law allowed amendment of process “in furtherance of justice and on such terms as may be proper” when “such amendment does not change substantially the claim or defense.” The new section, 60-313, supra, allows amendment of the process, return or proof of service “At any time in his discretion and upon such terms as he deems just,” unless “it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” The new section predicates the power more upon the “discretion” of the judge than upon “furtherance of justice” which indicates an increase in the power of the judge.
The time at which such amendment can be made under 60-313, supra, “At any time,” suggests the motion in the instant case, even though filed after judgment, is timely. In McPherson v. Street Railway Co., 101 Kan. 550, 167 Pac. 1070, after final judgment amendment was permitted on a sheriff’s return so as to make it speak the truth concerning the service of the notice of attorney’s lien, given at the commencement of the action. Similarly, in Hackett v. Lathrop & Smith, 36 Kan. 661, 14 Pac. 220, amendment was permitted after judgment in the proof of publication notice to correctly show the first publication date.
Certainly the trial judge under 60-313, supra, in his discretion is authorized to amend the sheriffs return of service after judgment to show the actual facts concerning the date of service, provided it clearly appears from the matter presented that material prejudice would not result to the substantial rights of the party against whom the process issued. Here the amendment sought pertains to one of form and not substance.
As to the amendment of a sheriff’s return Justice Brewer, speaking for the court in Smith v. Martin, 20 Kan. 572 (1878), said:
". . . When an officer makes a return upon process, it is, to say the least, as against him prima facie correct, and he should not be permitted to amend it until he makes it clear that it was erroneous. This, true, in all cases, is especially true when the effect of the return as first made is a liability upon him, and the amendment would operate to relieve him from liability. And still more true, when the party in whose favor the return was made, resting upon the faith of the return, would suffer loss by the amendment. . . .” (p. 573.)
The question immediately suggested is how must these facts be established at a hearing on a motion to amend the return of service.
The appellant seeks to raise this question as his first point. He contends the judgment of the trial court, amending the return of service, constituted an abuse of the discretionary power of the court in that no substantial evidence was introduced before the court in support thereof, and said judgment was entered wholly without foundation.
The appellant argues the only “evidence” offered by the appellee in support of its motion was an affidavit made by Deputy Sheriff Sauceda. (Actually, the only indication the affidavit was before the trial court was that it had been filed in support of the motion.) The appellant argues the deputy sheriffs day book was never in fact put in evidence. This is disclosed by the response given to appellant’s counsel when objection was made to its introduction without proper foundation. At no time was the appellant’s attorney ever permitted to examine the day book or cross-examine any witness concerning its authenticity.
It may be conceded, if the deputy sheriff’s day book was properly in evidence before the trial court, there was evidence to support its findings.
For reasons hereafter assigned we think it unnecessary to pursue this point further, or to undertake an academic discussion on the use of affidavits in presenting a motion of this character. (See, K.S.A. 60-460 [b]; K.S.A. 60-206 [d]- K.S.A. 60-256; and Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.)
Other points upon which the appellant relies are:
“2. Said judgment was an abuse of discretion in that it is clearly contrary to defendant’s evidence in opposition thereto.
“3. The judgment to amend was granted in response to a motion not timely made.
“4. The judgment to amend was clearly prejudicial to the substantial rights of defendant.”
Point three has heretofore been answered, and it may be said, if the appellant in point two is relying upon the greater weight of his evidence, assuming the matters presented by the movant were evidence before the court, it is without merit.
The fourth point, however, poses a more serious question.
Throughout the presentation of argument in open court and in their briefs, counsel for the respective parties challenged the record to disclose sufficient facts to support their opponent’s propositions.
Counsel for the appellee in his brief recites numerous facts which do not appear in the record, the most important one upon which he relies is the recital in his brief that the appellant paid the appellee a compromise sum in full satisfaction of the judgment on th 27th day of January, 1967.
The appellant relies upon the action filed in Johnson County (G. T. Rostock d/b/a Articaire Manufacturing Company v. Transport Clearing House, Inc.) for the proposition that the order of the trial court, permitting amendment of the sheriff’s return, was clearly prejudicial to his substantial rights. On this point appellee’s counsel challenges the record to show that the Johnson County action was in any way before the trial court when this motion was heard, in spite of the fact that appellee’s counsel argued the matter of prejudice to the trial court, and made reference to some other lawsuit which may have been previously or subsequently filed, thus inferentially indicating the trial court was aware of the existence of the Johnson County action.
The shoddy practice by counsel for the parties on both sides in presenting this matter to the district court leaves much to be desired. Technically, on the one hand, it could be argued the affidavit of the deputy sheriff and his day book were not in evidence before the trial court, and the decision of the trial court was, therefore, not based upon substantial competent evidence, unless it could be said counsel for the appellant waived any objection to such procedure at the hearing on the motion. On appeal counsel for the appellee argued in open court the trial court took judicial notice of the day book, and he asserted the affidavit was in evidence. On the other hand, it may be argued the record does not disclose that the trial court had before it evidence of the action filed in Johnson County, wherein the appellant sued the appellee for abuse of civil process and malicious prosecution.
It is readily apparent, however, the trial court was well aware of the entire situation, the Honorable William J. Bums of division No. 2 in the Wyandotte County district court having heard all matters pertaining to this case — the merits of this action resulting in the judgment against the appellant, the hearing on the contempt citation, and the motion to amend the sheriff’s return of process.
Viewing the matter presently before the court on appeal as a whole, it may be said there are numerous errors, all of which fall in the category of technical errors. Under these circumstances, we think the disposition of this case requires the court to invoke K. S. A. 60-2105. It provides in part:
. . in any case pending before it, the court [appellate court] shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.”
To permit amendment of the sheriff’s return in the instant case as the trial court did, with the action between the appellant and the appellee pending in Johnson County based upon the sheriff’s return of service on the execution, would materially prejudice the substantial rights of the appellant against whom the process issued in this case. Under these circumstances, we hold it was an abuse of the exercise of the court’s power of judicial discretion to permit amendment of the return under K. S. A. 60-313.
The admonition in 60-313, supra, that amendment of any process, return or proof of service thereof should not be granted when it clearly appears that prejudice would result to the substantial rights of the party against whom the process issued, is not limited to prejudice in the action wherein process issued. The broad language employed is designed to protect the substantial rights of the one against whom the process issued, whether the amendment sought would affect such rights in the action wherein process issued or in another action. To resolve the controversy between the parties in the Johnson County action by the procedural tactics here employed by counsel for the appellee would materially prejudice the plaintiff (appellant here) in that action. This appears to be one of the precise situations 60-313, supra, was designed to prevent.
The judgment of the lower court is reversed with directions to set aside its judgment amending the sheriff’s return of service on the execution. | [
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The opinion of the court was delivered by
Price, C. J.:
This appeal is from an order denying relief in a proceeding brought under K. S. A. 60-1507.
In 1963 petitioner, being at the time represented by experienced and competent court appointed counsel, entered a plea of guilty to the charges of burglary in the first degree (K.S. A. 21-513) and larceny in connection therewith (K. S. A. 21-524) and was sentenced to confinement in the penitentiary.
In 1967 petitioner filed a motion for relief under K. S. A. 60-1507, alleging as his only ground therefor that the information did not state the owner of the building which was burglarized. As witnesses to be called in support of his motion petitioner listed himself and the attorney who represented him at the time of his plea of guilty. As pertinent to the question raised — the information charged that petitioner, in the nighttime, did—
. . . break into and enter a residence known as the residence of C. D. Snyder, located at 1316 East 10th, Winfield, Kansas, ... in which said residence were then and there human beings, . . .”
with the intent to commit a larceny, and that he then and there stole shot gun ammunition which was the property of the said C. D. Snyder.
Upon consideration of petitioner’s motion the trial court found that the information contained a sufficient statement of the ownership of the property which was burglarized, and that the motion, files and records of the case showed that petitioner was entitled to no relief.
In this appeal from that order — and for which new counsel was appointed — petitioner contends the court erred in failing to appoint counsel to represent him on his motion and in failing to grant a full and complete hearing thereon.
Neither contention has merit. No issues of fact were presented by the motion and there was no necessity for petitioner’s presence. As to the one question of law — the sufficiency of the information— the court had that document before it for consideration.
It further is contended the court erred in holding the information to be sufficient. This contention likewise is without merit. The point is covered in State v. Myers, 200 Kan. 560, 561, 438 P. 2d 55, and requires no further discussion. The trial court was correct in holding the information contained a sufficient statement of the ownership of the property which was burglarized.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This action involves the validity of an income tax assessment made by the director of revenue in the sum of $294,-363.09. The district court set the assessment aside and entered judgment in favor of appellee. The director has appealed.
The action was tried on a stipulation of facts. The basic stipulations indicate Western Natural Gas Company was authorized and did business in Kansas and fourteen other states. Western was an integrated oil company. Rs principal office from which the business was directed was in Houston, Texas. It was engaged in the exploration for, production, transportation, refining and marketing of petroleum products. Between 1941 and 1947 Western acquired a substantial acreage of oil and gas leases in Kansas. These leases were held for exploration and production and not for resale. No sale of lease acreage occurred from 1947, the time Western began business operations in Kansas, to 1963, the date of liquidation. The board of directors of the company adopted a plan for complete liquidation of the company. As required by the plan the holders of two-thirds of the common stock voted their approval. The entire property of the company was liquidated by sale in 1963. The company is now a dissolved corporation. Western realized $8,086,-898 gain on the sale of its oil and gas leases on Kansas acreages.
The income tax return of the company for the year 1963 included gains from the sale of tangible equipment located on the leases in Kansas but did not include gains attributable to the sale of oil and gas leases. These gains were excluded on the theory they were non-business income from intangible personal property, taxable at the commercial domicile of the company in Texas.
The director of revenue made the assessment against the company and now contends these gains constituted business income taxable in Kansas.
In 1963 the legislature passed the Uniform Division of Income for Tax Purposes Act (K. S. A. 79-3271 et seq.). This act was passed to provide for uniform allocation and apportionment of the state income taxes of any taxpayer doing a multi-state business.
Pertinent provisions of the act read as follows:
K. S. A. 75-3271. “As used in this act, unless the context otherwise requires:
“(a) ‘Business income’ means income arising from transactions and activity in the regular course of the taxpayer’s trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.
“(b) ‘Commercial domicile’ means the principal place from which the trade or business of the taxpayer is directed or managed.
“(e) ‘Non-business income’ means all income other than business income.”
K. S. A. 79-3274 then provides for the allocation of non-business income as follows:
“Rents and royalties from real or tangible personal property, capital gains, interest, dividends, or patent or copyright royalties, to the extent that they constitute non-business income shall be allocated as provided in sections 5 through 8 [79-3275 to 79-3278] of this act.”
K. S. A. 79-3276 specifically provides for the allocation of non-business capital gain income:
“(a) Capital gains and losses from sales of real property located in this state are allocable to this state.
“(b) Capital gains and losses from sales of tangible personal property are allocable to this state if
“(1) the property had a situs in this state at the time of the sale, or
“(2) the taxpayer’s commercial domicile is in this state and the taxpayer is not taxable in the state in which the property had a situs.
“(c) Capital gains and losses from sales of intangible personal property are allocable to this state if the taxpayers commercial domicile is in this state.” (Emphasis supplied.)
We discern no discrepancy between the general provisions of K.S.A. 79-3202 ( 2), 79-3203 (a), 79-3205 (a) and the specific provisions of K. S. A. 79-3271, et seq. which relate to allocation and apportionment of income. The specific provisions relating to allocation appear decisive of the questions posed.
The rights created by oil and gas leases covering land in Kansas constitute intangible personal property except when that classification is changed for a specific purpose by statute. (Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631; Denver National Bank v. State Commission of Revenue & Taxation, 176 Kan. 617, 272 P. 2d 1070.)
After the decision in Denver National Bank the legislature amended the inheritance tax act to provide that oil and gas leases on lands in Kansas should be considered tangible personal property for the purposes of the inheritance tax act. (K. S. A. 79-1501.) The change was limited to inheritance taxes. We find no similar provision in the income tax law of Kansas and none has been called to our attention. In construing and applying the present income tax law of Kansas the rights conferred by these oil and gas leases constitute intangible personal property.
Our next question is whether the income realized by Western on the sale of leases was “business income” as defined by K. S. A. 79-3271 (a). To constitute business income it must arise from transactions and activity in the regular course of a trade or business. Business income includes income from intangible property if the acquisition, management and disposition giving rise to the income constitute integral parts of the regular trade or business operations. It is not the use of the property in the business which is the determining factor under the statute. The controlling factor by which the statute identifies business income is the nature of the particular transaction giving rise to the income. To be business income the transaction and activity must have been in the regular course of taxpayer’s business operations.
In an analogous case this court held the sale of the entire stock of oil on hand was not a sale “in the ordinary course of trade or business” as that term is used in the Kansas Bulk Sales Law. (See Oil Co. v. Consolidated Companies, 110 Kan. 245, 203 Pac. 915.)
The rule of statutory construction set forth in K. S. A. 1967 Supp. 77-201. (Second) reads:
“Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
In construing the present statute we are mindful of the above statutory rule as well as those fundamental rules stated in Syllabus 1 of Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124, and in syllabi 1 and 2 of Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128. These rules are well established and need not be quoted at length.
The word “regular” is defined in Webster’s Third New International Dictionary (Unabridged) as steady or uniform in course, practice or occurrence and not subject to unexplained or irrational variation.
The present sale of leases cannot be considered made in the regular course of business operations. This sale by Western included all of its assets. A complete plan of liquidation was carried out requiring the affirmative vote of the stockholders. The sale was not made in the regular course of taxpayer’s business operations when measured by its former practices. It had not sold oil and gas leases. The sale contemplated cessation rather than operation of the business.
The income from the sale falls in the classification of non-business income. The allocation of such income is controlled by K. S. A. 79-3276. Rights in oil and gas leases are intangible personal property for the purposes of our present income tax act. As such the capital gain would have been allocable to Kansas under K. S. A. 79-3276 (c) if the taxpayer’s commercial domicile was in Kansas. The commercial domicile of Western was in Houston, Texas. Therefore, the income from the sale of Western’s intangible personal property is not taxable in Kansas.
What has been said disposes of this appeal but one additional contention of the director should be considered. The case of Republic Natural Gas Co. v. Axe, 197 Kan. 91, 415 P. 2d 406 is cited to support the contention that gain realized from the sale of oil and gas leases in a complete liquidation of such a corporation is legally taxable in Kansas. In Republic we were not confronted with allocation of income under the uniform act. The tax year involved in that case ended June 30, 1962. The uniform act is applicable to taxable years commencing after December 31, 1962. (K. S. A. 79-3293). The provisions of the uniform act were not considered in Republic and did not apply to the taxable year under consideration.
The judgment setting aside the additional assessment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
Roy William Hooks has appealed from his conviction by a jury of the offense of grand larceny.
The controlling question for our consideration deals with an accused’s constitutional right to be confronted with witnesses against him.
Hooks was charged in an amended information with stealing approximately $95 from a cash register on or about December 29, 1965, in the Ranch Mart Liquor Store in Johnson county, said money being the property of C. R. Murray. Evidence was introduced at trial that on the evening of December 29, “a colored chap,” identified as the defendant, entered the store at approximately 9:00 p. m. and ordered a half pint of liquor from the clerk, C. R. Murray. When Murray rang up the sale, thereby opening the drawer of the cash register, the customer put some change on the counter and some of it fell to the floor. Murray retrieved the money from the floor, gave the purchaser his change and closed the drawer. After the customer departed, Murray became suspicious, opened the cash register and discovered the $20 bill section empty. A check of the register disclosed a shortage of $95.25.
As part of the state’s case in chief, the deposition of Mrs. Eula Gregory, residing in Tulsa, Oklahoma, was read into evidence. Mrs. Gregory related the details of a similar, attempted “till-tapping” incident at the Funsville Toy Store located in the Ranch Mart Shopping Center in Johnson county on December 8, 1965, where she was working as a clerk. A purported photograph of the defendant was identified by Mrs. Gregory as being the picture of one of two colored men who were in the toy store, the defendant being the one who attempted to reach into an open cash register drawer after the other man had “dropped” some change on the floor.
Mrs. Gregory’s deposition had been taken by an assistant county attorney approximately one week prior to trial for the reason that the witness was about to undergo throat surgery and would be unable to appear in person. Although the defendant himself was not present at the taking of the deposition, defendant’s retained counsel was present and cross-examined the witness extensively. The deposition and photograph were admitted into evidence, over objection, for the limited purpose of “lack of mistake” and “to show method of operation.” Counsel’s numerous objections to the deposition, although grounded principally on the irrelevancy and prejudicial effect of the alleged unrelated incident about which the witness testified, leave no doubt that he persistently resisted the admission of the deposition, and that his failure to object on the basis of the defendant’s being denied his right to be confronted with the witness was, at most, inadvertent. (See Patterson v. Brown, 393 F. 2d 733 [10th Cir. 1968].) From counsel’s oral argument, and our search of the record, we are compelled to conclude that there is a total absence of any showing that the contemporaneous objection rule was deliberately bypassed as a part of defense strategy, or that the defendant’s constitutional right of confrontation was intentionally and knowingly waived. (Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564; Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822; Brookhart v. Janis, 384 U. S. 1, 16 L. Ed. 2d 314, 86 S. Ct. 1245; Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357; cf., Mize v. Crouse, 399 F. 2d 593 [10th Cir. 1968]; Nelson v. People of State of California, 346 F. 2d 73 [9th Cir. 1965].)
The Sixth Amendment to the Constitution of the United States provides that “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065, the Supreme Court held this right is a fundamental right and is made obligatory on the states by the Fourteenth Amendment.
Similarly, § 10 of the Bill of Rights of the Kansas Constitution secures to the accused in all criminal prosecutions the right “to meet the witness face to face.” This provision was dealt with by this court in the early case of State v. Tomblin, 57 Kan. 841, 48 Pac. 144. There, a deposition was taken, upon application of the defendant, on interrogatories prepared by his counsel and cross-interrogatories prepared by counsel for the state. In holding that the trial court erred in permitting the state, in rebuttal, to introduce portions of the deposition over the defendant’s objection, the court stated:
“. . . He [the defendant] did not oEer the deposition in evidence; and, notwithstanding the fact that he had caused it to be taken and filed in the court before the trial commenced, he still had the right to insist on meeting face to face every witness who should testify against him at the trial. This constitutional guaranty is one of the most important safeguards to the citizen when charged with crime, and no court has any right to abridge or deny it. Rice on Evidence, § 243; Cline v. State, 36 S. W. Rep. 1099. . . . The mere fact that the defendant asked that the deposition might be taken did not amount to a consent that, whatever the witness might testify to, the deposition might be read in evidence at the trial.” (pp. 843, 844.)
(Also, see State v. Woods, 71 Kan. 658, 81 Pac. 184.)
Likewise, in State v. McCall, 158 Kan. 652, 149 P. 2d 580, it was held the admission of a deposition of a witness taken by the defendant but introduced into evidence by the state in its case in chief was in violation of the Kansas Constitution and prejudicially erroneous. The court emphasized that the fact the defendant had served the notice and taken the deposition did not constitute a waiver of his right to be confronted with the witness. The opinion refers to instances where the testimony of a witness given at a former hearing in the presence of the defendant may be introduced by the state when the witness is unavailable, but admonishes:
. . we have never held that the defendant was not entitled to be confronted by the witness at some stage of the proceedings under circumstances such as those in this case. . . .” (p.654.)
Additionally, K. S. A. 60-460 (c) expressly provides the statutory provisions authorizing the admission of deposition testimony shall not apply in criminal actions if the accused is thereby denied the right to meet the witness face to face.
The foregoing authorities amply demonstrate that the accused’s right to be confronted with witnesses against him is a basic and fundamental right essential to a fair trial under the Constitutions of the United States and the State of Kansas. Under the facts here, the defendant was never at any stage of the prosecution accorded the right to be confronted with the witness whose deposition was used against him, nor did the defendant waive such right. The erroneous admission into evidence of the testimony of Mrs. Gregory was highly prejudicial, and a new trial is required.
Since other assignments of error may not arise in a retrial of this case, they need not be discussed. The judgment of the lower court is reversed and the case is remanded with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts of this case are as follows: In April, 1880, one Samuel Lehman recovered a judgment against the plaintiffs in error for the sum of $57.59, in the district court of Harvey county. For the purpose of reviewing said judgment, defendants in that action prepared a case-made, which was duly settled, signed and attested on April 5, 1880. A bond to stay execution was also filed at the same time. Thereupon the counsel for said defendants took said case-made to his office for the purpose of preparing a petition in error to be filed with said case-made in this court. While he was engaged in preparing said petition in error, the counsel for the plaintiff in that case entered his office, and took and carried away said case-made, and kept the same secreted from that time continuously until the 25th of Octobek, 1881, when he returned it to the counsel for said defendants. During the time that it was so secreted, the defendants and their counsel made repeated demands of the counsel for plaintiff, for the possession of the case-made, stating that they desired to file it with the petition in error in this court; yet said-counsel willfully refused and neglected to give it up. When-finally he did return it, the time within which by statute-said judgment could be brought to this court for review had passed. Thereafter he ordered out execution upon said judgment, and placed it in the hands of the defendant in the present case, the sheriff of Harvey county, who levied the same upon a lot belonging to plaintiffs. They thereupon commenced this action to restrain the collection of said judgment, on.the ground that by the wrongful conduct of said counsel they had been deprived of an opportunity of having said judgment reviewed in this court. A temporary injunction was granted, which thereafter, on motion of the defendant, was vacated, and now the plaintiffs allege error. No-affidavits or other testimony was offered by defendants on the motion to vacate; but the case was submitted upon the petition alone. Therefore, for the purposes of the present-inquiry, we must assume that the facts as stated in the petition are true. Counsel for defendant in error, who was also-the counsel for Lehman, and the counsel upon whom the wrongful conduct above stated is charged, states in his brief in reference to the charges against himself as follows: “If .there should ever come a time in the history of this case when we shall deem it best to answer such allegations, we feel a conscious ability to do it fully, satisfactorily; and, as modestly admitted by the-counsel who wrote the brief for plaintiffs, we will not only be able to show a stuffing of the t case-made, but that the thing was a fraud, an unsuccessful effort to forge one.” We beg leave in all kindness to say to' counsel that we think he has made a mistake — that he should have answered these charges as soon as they were made. They are charges of conduct unprofessional and dishonest; and while, as will be seen, we agree with him that they do not entitle the plaintiffs to the relief sought, yet we think every lawyer owes to himself, his family and his profession' the duty of preserving his good name. Counsel has appeared in many cases before us. We have seen nothing in his practice in this court which was mot fair and honorable, and we have all entertained a high opinion of him both personally and professionally, and would be slow to believe him guilty of any dishonorable conduct. Yet as he has submitted the case upon a demurrer, we have to assume that the facts stated in the petition are true, and discuss the rights of parties upon the basis of that assumption. This is certainly not a pleasant task for us. With these preliminary observations we turn to a discussion of the questions presented, and in the first place we remark that there is nothing in the record to show that such judgment was not just and right. It is true the plaintiffs say they desired to bring the judgment to this court for review, but that does not show that the’judgment was wrong. All the presumptions are in favor of the rulings of the trial court and the correctness of its judgment. This would be so, even if those proceedings were here for review upon the whole record. Of course this presumption is all the stronger when none of those proceedings are dis-' closed. This petition shows that the district court had jurisdiction; that both parties appeared before it; that trial, was had by a jury, motion for a new trial made and overruled, and judgment entered upon the verdict. All this tends to show that the judgment was right, and there are in this petition no facts stated \yhich tend to show any error in it. It is not alleged that the verdict and the judgment were against the evidence, or that the court erred in the admission or rejection of testimony or in its instructions, and the only intimation or suggestion which points to error is the fact that the defendants therein took exceptions and sought to bring the case to this court. In High on Injunctions, § 86, the author says: “In accordance with this principle, a judgment will not be enjoined where there is no evidence of a good defense to the merits, or that the judgment is contrary to equity and against conscience, the only ground relied upon being that the cause was brought on to trial in violation of a verbal agreement of counsel for its postponement;” citing Ableman v. Roth, 12 Wis. 81. In the opinion .filed by Chief Justice Dixon in the case cited, the learned judge discusses the question at some length. Now that was a case in which the misconduct of counsel was before judgment, but as it did not appear that the judgment itself was wrong, an injunction restraining its collection was refused. Again, in § 89 Mr. High says, citing Taggart v. Wood, 20 Iowa, 236: “A judgment, regular on its face, will not be enjoined when it is not shown to be unjust or oppressive, and when it does not appear that the person asking the aid of equity against the enforcement of the judgment has a good defense to the claim upon which it was founded.” See also 2 Story’s Eq. Jur., § 877; Duncan v. Lyon, 3 Johns. Ch. 352; Pierce v. Only, 20 Conn. 544; Way v. Lamb, 15 Iowa, 79; Wright v. Eaton, 7 Wis. 595; Stokes v. Knarr, 11 Wis. 389; Borland v. Thornton, 12 Cal. 440; Snider v. Vannoy, 1 Oregon, 394. Indeed, the general doctrine to be gathered from all the authorities is, that an injunction will not lie to restrain the collection of a judgment unless it affirmatively appears that the judgment itself was wrong, and that it would be against equity and good conscience to have it enforced, and this notwithstanding there appears gross misconduct on the part of the prevailing party. See upon a kindred question, the case of the Railway Co. v. Simpson, 11 Kas. 494. Now in this case it does not appear that the judgment was wrong; it does not appear that there was anything of which complaint could justly be made prior to the rendering of the judgment. The only misconduct alleged is misconduct subsequent to the judgment, misconduct in no manner affecting the correctness of the judgment, but simply operating to prevent a review of alleged errors. If equity interferes at all to give relief, its interference should be only commensurate with the wrong; and while we sustain the ruling-of the district court vacating the injunction, we "think the plaintiffs are not entirely without remedy. We think they may file their petition in error and case-made in this court, with an allegation that the delay was caused solely by the wrongful conduct of the defendant in error; and if upon inquiry in this court it shall satisfactorily appear that the delay was in fact caused solely by the wrongful conduct of defendant in error, and also that the plaintiffs in error have been guilty of no laches, this court will entertain jurisdiction, and will not permit the defendant in error to raise the question of the lapse of time.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff filed a petition in three counts: the first for an accounting of certain partnership transactions, the second for money loaned, and the third for work and labor. Defendant answered with first, a general denial; and second, a counterclaim for board, lodging, and medical attention ; and third, one for money loaned; and fourth, for money paid for the use and benefit of plaintiff. To these counterclaims a general denial was filed. The issues thus presented were referred to a referee for trial, who on June 24, 1881, made his report in writing, stating that he found that there was due to the plaintiff from the defendant, upon the matters alleged in the pleadings, the sum of $300, and that the plaintiff was entitled to a judgment against the defendant for that sum. No exceptions were taken by the defendant to this report. On the same day the plaintiff filed a motion to confirm the referee’s report, and for judgment accordingly; This motion was not then taken up and disposed of, but was postponed until the October, 1881, term. At such term, and on October 14,1881, the defendant for the first time made objections to this report, by filing a motion to set it aside on the ground that it failed to state separately the facts found and the conclusions of law thereon. This motion was overruled, the report confirmed, and judgment entered for the plaintiff. Defendant now alleges error, relying upon the case of Oaks v. Jones, 11 Kas. 443, which decides, following the code, (§293,) that a referee must state the facts found and the conclusions of law separately. The defendant was too late with his motion. It was not made within three days after the filing of the report, nor at the term at which it was filed. Hence within ¡§308, the application was made too late. Besides, the defendant had preserved no exceptions to the action of the referee. (Grant v. Morse, 22 N. Y. 323.) Therefore, without considering the effect of the general finding in the report, the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally brought before a justice of the peace of Osborne county, by S. Muthersbaugh against George W. Williams and W. J. Carr, copartners doing business under the firm-name of Williams & Carr, to recover the sum of $30.55. A trial was had before the justice, and the plaintiff recovered the sum of $21.55 debt, and $10.50 costs. This judgment, except as to a small proportion of the costs, probably about one or two dollars, accruing in certain attachment proceedings had in the case, is admitted to be correct; but the defendant Williams, who is now plaintiff in error and who was plaintiff in error in the district court, complains of certain orders made by the justice in these attachment proceedings, claiming that they are erroneous as to him.
In order to fully understand the nature and character of these attachment proceedings, it will be necessary to give something of their history. At the time the action was commenced the plaintiff, Muthersbaugh, filed an affidavit for an attachment, alleging therefor all the grounds for an attachment provided for by §28 of the justices code, except the first and the last three. This affidavit applied to both the defendants, and it is admitted that it is correct and true with respect to Carr; but it is claimed by the defendant Williams that it is not correct or true with respect to himself. He therefore filed an affidavit in the justice’s court, denying all the allegations of the plaintiff’s affidavit so far as the same applied to himself, but did not deny any of the allegations of the plaintiff’s affidavit so far as they applied to Carr or to the partnership, unless the denial with respect to himself was also a denial with respect to the partnership. The plaintiff’s affidavit for the attachment was made under § 28 of the justices code, which provides, among other things* that—
“The plaintiff in a civil action [before a justice of the peace] for the recovery of .money, may, at or after the commencement thereof, . . . have an attachment against the property of the defendant upon the grounds herein stated: . . . second, when the defendant, or one of several defendants, has absconded with intent to defraud his creditors; or, third, has left the county of his residence to avoid the service of .a summons; or, fourth, so conceals himself that a summons cannot be served upon him; or, fifth, is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, sixth, is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, seventh, has property or rights in action which he conceals; or, eighth, has assigned, removed or disposed of, or is'about to dispose of his property, or a part thereof, with the intent to defraud, hinder or delay his creditors.”
There are four other statutory grounds for an attachment, numbered respectively, first, ninth, tenth, and eleventh; but they do not apply to the present case. The affidavit of the defendant, denying the allegations of the affidavit of 'the plaintiff, was made under §53 of the justices code, which reads as follows:
“Sec. 53. If the defendant shall, before the trial is commenced, file an affidavit denying the grounds laid for the attachment in the plaintiff’s affidavit, the justice shall, on reasonable notice in writing being given to the opposite party, proceed to examine into the truth of the grounds laid for such attachment, and shall hear such evidence as may be produced by either party; and if it appear that such grounds are not sustained by the evidence, the justice shall discharge the attachment.”
As before stated, the plaintiff’s affidavit for the attachment applied to both the defendants, and applied to them in their copartnership .capacity as well as in their individual capacity. The partnership was not denied, but it was in fact admitted. The defendant’s affidavit did not apply to Carr, or to the partnership, as above stated, but applied only to himself; and he asked the court, the justice of the peace, to discharge the attachment so far as it affected him personally, and so far as it affected his individual property. The court, however, ruled against him, holding that the defendant’s affidavit should be as broad as the plaintiff’s; that unless the defendant should deny the allegations of the plaintiff’s affidavit as to both the defendants, as to both the partners, as to both Williams and Carr, the defendant’s affidavit would not be good, and that the attachment should be sustained; and as Williams could not and did not file any such affidavit, the justice sustained the attachment, and sustained it not only as against the partnership property, but also as against the individual property of Williams. Williams took the case to the district court, which he asked to reverse the rulings of the justice of the peace with regard to the attachment; but the district court affirmed such rulings, and Williams now brings the case to this court, claiming that both the justice and the district court erred with reference to the attachment.
As before stated, Williams does not deny the debt, or the correctness of the judgment rendered therefor, or his duty to pay such judgment, except as to a small proportion of the costs, (and the amount of the judgment is small, as will be observed, and could easily be paid;) nor does he deny the plaintiff’s right to the attachment as against his copartner, Carr, nor does he claim, as we understand, that the officer in levying the attachment did not in fact exhaust all the partnership property before levying upon any of Williams’s individual property; but he denies the plaintiff’s right to an attachment at all as against himself, and, possibly, also as against the partnership. Was the attachment rightfully sustained as against Williams and his property? This is the only question involved in the case; and indeed it may be doubted whether even this question is fairly presented in the case. But as counsel for defendant in' error raise no question in this respect, we shall proceed to consider the question as though it were undoubtedly in the case. This question we think must be partly answered in the affirmative and partly in the negative: it must be answered in the affirmative as to. all the partnership property, but must be answered in the negative as to Williams’s individual property.
Perhaps, before proceeding further, it would be well to state that in this state the statutes provide, among other things, that “all contracts which by the common law are joint only, shall be construed to be joint and several;” and “in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable;” (Comp. Lawsl879, p. 209, §§ 1, 4;) and “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Code, §396; see also Alvey v. Wilson, 9 Kas. 405; Fullam v. Abrahams, just decided.) We would therefore think, under our statutes, including the justices code, that an attachment would lie against all the members of a copartnership where the grounds for the attachment would apply to all of them; and it would lie against any single member of the copartnership where the grounds for the attachment would apply to him alone, or to him and others. Generally, in our codes of procedure, the word “defendant” is a collective name, which includes all the separate defendants; and it is probably so used in §§ 28 and 53 of the justices code; but' the word “defendants” is also used in said § 28 in a very different sense, evidently meaning the defendants severally. Said section says: “When the defendant, or one of several defendants,” etc., the word “defendant” evidently meaning the sole defendant when there is only one defendant, and all when there are several defendants; while the word “defendants,” used in the same section, evidently means each of the defendants severally. It will also be noticed that the nominative to the verb in each of the several subdivisions of said §28 is “the defendant, or one of several defendants,” evidently showing that each of the several grounds for an attachment is intended to apply to each and every defendant in the case. Except for our statutes, it is possible that an attachment would not lie against a partnership, or against any member thereof for a partnership debt. (Leach v. Cook, 10 Vt. 239; see also Cowdin v. Hurford, 4 Ohio, 132; Taylor v. McDonald, id. 149; Sears v. Houghton, 7 How. Pr. 383.) But under our statutes we think it is clear beyond all question that an attachment will not only lie against a partnership, but will also lie against any member thereof for a partnership debt. It will lie against a partnership, however, only where all the members thereof have by their acts rendered themselves liable to an attachment. (See authorities above cited.) Each partner, however, is responsible for his own acts, and where one of the partners has rendered himself liable to an attachment, the attachment may not only be issued against him, but partnership property may be taken by attachment as a security for the debt. (1 Wait’s Actions and Defenses, 419, near the bottom of the page, and authorities there cited; Hershfield v. Claflin, 25 Kas. 166; see also Jefferson County v. Swain, 5 Kas. 376; Sellew v. Chrisfield, 1 Handy, 86; 2 Lindley on Partnership, 689, ,et seq.) To this extent the partnership must suffer for the individual wrongs of each of its members. In this state each partner is liable for the whole of the partnership debts; and a suit may be brought against any one or more of such partners to recover any one of such debts; and in such suit an attachment may be issued against any one or more of the defendants who may be liable thereto; but as before stated, it can be maintained against only such of the defendants as have by their acts rendered themselves liable to an attachment; and partnership property may be seized in attachment cases whether the order of attachment runs against the entire firm, or against only a portion of its members; and, indeed, partnership property may be seized on an attachment where the suit is against an individual member of the partnership only, and to recover from him on his individual debt only. (Hershfield v. Claflin, 25 Kas. 166, 170, and eases there cited; 2 Lindley on Partnership, 689, et seq., and cases there cited.) But where the suit is against the individual member only, and to recover from him on his individual debt only, only the individual interest of the partner in the property seized can be sold. And the individual property of one partner can never be seized or sold by virtue of an attachment issued against one of the other partners.
The' judgment of the court below will be modified in this case by setting aside and vacating all the orders made by the justice of the peace with reference to the attachment as against the defendant Williams, and the attachment proceedings will be reopened for a hearing upon the truth of the grounds alleged in the plaintiff’s affidavit for the attachment, so far as such grounds apply to the defendant Williams. In all other respects the judgment and orders of the court below, and the judgment and orders of the justice of the peace, will remain undisturbed. The costs of this court will be taxed against the defendant in error. Judgment modified.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action grows out of a condemnation proceeding instituted in Butler county by the Florence, El Dorado & Walnut Valley railroad company, to acquire a right-of-way for its railroad over, the lands of J. R. Ward and others. Ward, being dissatisfied with the award of the commissioners, appealed to the district court of said county, by which appeal he became the plaintiff, and. the railroad company became the defendant. The ease was then tried before the court and a jury. The jury consisted of Robert E. Moore, R. H. Steele, Harry Jones, James Hughes, and others. In impaneling the jury the following proceedings, among others, were had: '
R. H. Steele, examined by plaintiff’s attorney: Q,. Have the facts, or what purported to be the facts, been related in your presence or hearing? A. Yes, sir; to a large extent. I have heard a great deal of the case.
Q,. Have you heard what purported to be the facts of. the damages the plaintiff has sustained ? A. I have heard the circumstances of the land and the conditions through which the road ran through there, explained to me.
Q,. When did you hear this? A. At different times.
Q. At or about the time of the trial of this case at the last term of court? A. No, sir.
Q. Subsequent, or prior? A. At the time the survey was made and the road was in course of construction.
Q,. From what you have heard now, have you an opinion formed in your mind, or expressed, relative to the amount of damages the plaintiff ought to recover, or relative to any material issue in this case? A. As I have been informed, according to the knowledge I received of it, I believe I have formed an opinion in regard to the damages assessed by the examining board.
Q,. Have you formed an opinion relative to the amount Ward ought to receive? A. I cannot say that I have.
Q,. Can you now sit in this case and give a conscientious judgment in regard to the amount that Ward ought to receive, from the evidence you may hear in this case? A. As far as my judgment is concerned, I perhaps could to the best of my knowledge and belief.
Q, . Without any reference to what you have heard before? A. Yes, sir.
R. H. Steele, examined by defendant’s attorney: Q. In what part of the country do you reside ? A. In El Dorado.
Q,. Are you acquainted with Ward? A. I know him by sight; that is about all.
Q. Are you acquainted with the location of his farm and how it is crossed by the railroad ? A. Not from personal knowledge. •
Q,. You said you had expressed an opinion in regard to the compensation that Ward ought to receive. You have no opinion now in regard to the compensation that Ward should receive? A. I don’t know that I have now, or ever had or expressed an opinion.
Q,. Have you ever had any difficulty with the defendant railroad company? A. I think not; no, sir.
Q,. Have you ever had any difficulty with the Atchison, Topeka & Santa Fé railroad company ?
(Plaintiff objects, as immaterial and irrelevant. Objection overruled by court, the plaintiff at the time excepting.)
A. No, sir.
Q,. Have you any feeling or prejudice against the defendant railroad company, or against railroad companies in general ? A. Only as has been expressed by others. I think they have been exorbitant in their freight rates.
Q. Have you any feeling or prejudice agaist the defendant railroad company? A. No, sir.
Q. Do you think your mind is in that condition that in the trial of this case you could give the defendant as fair a trial as though a private citizen of this-county and one of your neighbors? A. That is the condition I have aimed to be in.
Q,. Do you think your feeling against railroad companies on account of high charges would influence you in fixing the amount of damages against this company ? A. I think not.
Q. Have you from Mr. Ward or others heard of a compromise having been made by the defendant railroad company to Mr. Ward in regard to this suit?
(Plaintiff objects as immaterial and irrelevant, which the court overrules, the plaintiff at the time excepting.)
A. Yes, sir; I have.
Q,. In what you heard, was any amount stated? A. It was.
Q,. Did you, at the time you heard it, form any opinion as to whether that amount was more or less than Ward ought to receive?
(Plaintiff objects as immaterial, which objection the court overrules.)
A. I believe I did.
Q. Did you express that,opinion? A. I don’t know that I did.
Q,. Have you the same opinion now which you formed at the time you heard it? A. I have heard nothing to change whatever it was.
Q,. Is it such an opinion as would • require evidence to change it? A. I haven’t formed an opinion. but what I would base my opinion from the evidence produced in court.
Q. At the time you heard of the amount which had been offered, you did form an opinion as to whether it was too much or too little? A. I think I did.
(Defendant’s counsel challenge E. H.- Steele for cause.)
By plaintiff’s attorney to Steele: Can you, if sworn asa juror in this case, try it upon the evidence offered here, and conscientiously find a verdict without any reference to what you have heard before? A. I think I can.
Q,. Can you hear the evidence in this case and find a verdict the same as you would find it if it were a controversy between two persons? A. I think I can.
(Plaintiff objects to defendant’s challenge for cause.)
By the court to Steele: Have you any personal knowledge of the matter in controversy in this case? A. No personal knowledge, only as I have heard from others.
Q,. You are not acquainted with the land alleged to have been damaged in this case? A. I never saw it, and don’t know the distance to it.
Q,. Have you conversed with any person who assumed to have personal knowledge of the manner in which the particular land was crossed by the railroad and the extent to which it was damaged? A. I believe the ones I heard talk of it had personal knowledge; that is, I supposed they had.
Q. Is the opinion which you formed as to whether the sum which you heard had been offered by way of compromise was too great or too small — is that opinion based upon the conversation which you have had with these persons who assumed to know in what manner the land was damaged? A. It was based upon the description of the way in which the road crossed the land.
Q. Have you now in your mind a definite opinion as to the amount of damages which Ward has suffered by reason of his land being crossed by the railroad? A. No, sir.
Q,. Did you ever have any definite opinion in your own mind as to the amount of damages that should be awarded him ? A. I cannot say that I have.
The court overruled defendant’s challenge for cause, to which ruling the defendant at the time excepted.
The jury found a general verdict in favor of the plaintiff ancl against the defendant, and assessed the amount of the damages at the sum of $1,050. The defendant then moved the court for a new trial upon various grounds, and among others, on the ground of misconduct on the part of the jury. The alleged misconduct was principally that of R. H. Steele. On the hearing of the motion. for a new trial, the several jurors were examined orally with reference to certain matters occurring during their deliberations with reference to their verdict. A portion of their evidence is as follows:
Harry Jones, called by defendant, having been duly sworn, testified as follows (direct examination by E. N. Smith):
Q,. State if you were one of the jurors in the trial of this case at this term of court. A. I was.
Q,. State whether or not Steele didn’t make a statement while jjpu were deliberating upon your verdict, that the railroad company had offered Ward $1,000. A. He did.
Q,. I will ask you to state whether or not Steele, or any ■other member of the jury, didn’t state that unless the award was more than what the defendant had offered, that Ward would have the costs to pay •? A. I wouldn’t be surprised that the question before this was answered wrong. Steele didn’t make that remark to the jury. He made it to me; not to the jury. I didn’t mean to say he made the statement to ■the jury, but to myself.
Q,. Did you know of this statement before to-night, that the other witnesses have referred to, that he made up at the table ? A. I remember of hearing the foreman, when somebody made a statement as to the amount offered, say that that must not be taken into consideration. I don’t remember who made the statement, or the amount; but the foreman said that is not for us to take into consideration; that we must not talk about it. He put his ruling to vote, and it was sustained.
Q,. The statement you had reference to in your first answer was after that time, and made to you individually? State .how he came to make that statement to you. A. It was after breakfast, while we were in that little room. The room has , two tables, one upon the east side, and one upon the west; a ■stove in the north, and a door in the south. I was sitting in my chair with my back nearly against the door, and Steele was .■at the east table leaning against the wall on the north side, and for the first time, he and I being perfect strangérs, he motioned for me to come to him. I went to him and he commenced .talking about it was time to get together, and that we could ■not do anything while I, the stubborn man, stayed so low; that J must make a break. There was little talk went on. He .said, “We must put it about $1,000, because, if you remember, J said, when questioned as a juror, that I had heard of the .amount offered, and that amount, which I don’t know as it is true, was $1,000; and if we come to awerdict at all, we have got to go above $1,000, in order to throw the costs upon the other party.” That was the only time I heard the amount ■mentioned. It was by Steele, directed to me, and I didn’t believe there was a man in the room heard our conversation.
Q,. State whether or not, in your opinion, if it had been understood that the offer had been $900, whether or not the jury would not as readily have agreed,upon $950, or any amount less than $1,050. A. The jury never could have ■been brought to any verdict below $1,050, in my judgment.
(Cross-examination.) Q,. This conversation was after-breakfast the next day following the trial? A. Yes, sir.
Q. You had balloted a good many times ? A. Yes, sir.
Q,. It was generally understood how you each individually-stood ? A. Yes, sir.
Q. And you were the “low man?” A. Yes, sir.
Q. Did the statement made to you by Steele influence your-verdict? A. No, sir.
Q. There was no one else heard it but you and Steele?' A. I don’t suppose that there was a man in the room knew what we were talking about. •
Q. Most of the other jurors were pretty near together? A. Yes, sir.
Q,. And were pretty well above $1,000? A. Yes, sir;, except two that were below $1,000. The rest were $1,100- and above at that time, mostly above $1,100: eleven hundred and twelve hundred, as well as I remember now.
Q. I understood you to say you were satisfied they could' not have been brought below $1,000, independent of any proposition pro or con by the railroad company? A. No,, sir, they could not. I should never have entered into a verdict myself for less than for $500. I should not have wanted-to give $1,000, if I could help it. My judgment was for $900.. I don’t think the jury would have been brought below their-verdict by any means.
Q. Your object was to bring some of the extreme men down, that you took so low a figure? A. I cast my vote for a lower amount than the verdict would have been if I had the casting of it alone.
Q. Did the statement of Steele influence your verdict in any way or form? A. No, sir; and I don’t think he made-it with that intention. He made it more to. find out where I would come, in my own sense of honor and justice, and not to influence me wrongly.
James Hughes testified, among other things, that “Steele made the remark: ‘I heard it said they tendered him $1,000/' As he made the remark, Moore was sitting there, and said: ‘That had nothing to do with the case at all.’ And the rest-of the jury indorsed Mr. Moore in what he said.”
Robert F. Moore, however, in answer to the following-questions, testified as follows:
Q,. State if you heard any juror state, prior to the finding-of your verdict and its announcement here in-open court.. what amount the defendant had offered the plaintiff in compromise. A. I didn’t.
Q,. Did you know, prior to the finding of the verdict, what they had offered? A. No, sir.
Upon the foregoing evidence, these questions arise: 1. Was the juror Steele a competent and impartial juror? 2. Was he guilty of misconduct while the jury were deliberating upon their verdict?
The plaiutiff claims that the juror was competent and impartial, and that he was not guilty of any misconduct; while the defendant claims the reverse. The plaintiff also claims that it was not proved as a fact that the railroad company ever offered to confess judgment, or ever mentioned any amount for which it was willing to confess judgment. Now so far as this case is concerned, we think it is wholly immaterial whether this last-mentioned claim of the plaintiff is correct or not; for the question is not whether the defendant offered to confess judgment for any amount, or not; but the questions really are, What did the jurors believe concerning this and other subjects? Were they impartial jurors? and Was there any misconduct? If the jurors believed that the defendant offered to confess judgment for $1,000, as it seems that Steele and some of the other jurors did, it would have precisely the same influence upon their minds, and the same effect upon their verdict, as though the railroad company had really made such an offer.
The plaintiff also claims that the defendant did not exhaust its peremptory challenges; that, at the time the jury were impaneled and sworn and the trial commenced, the defendant still had one peremptory challenge, which it might have exercised in discharging Steele from the jury if it had so chosen; but that it did not so choose, and therefore Steele remained a member of the jury. We have examined this claim of the plaintiff, and the claim seems to be A correct. The record does not show that the defendant exercised more than two of its perempchallenges, while, under the statutes, each party is entitled to three. (Civil Code, § 271.) This fact, that the defendant did not exercise all its peremptory challenges, we think must have an important bearing in the case. It is our opinion that the juror Steele was not a fair and impartial juror, though his preconceived opinions in the case were not so manifestly prejudicial as to render him an unmistakably incompetent juror. It is also our opinion that he was guilty of unquestionable misconduct in acting as he did in the jury room, and while the jury were deliberating upon their verdict, but his misconduct was not so flagrantly wrong, or so manifestly prejudicial in its influences, as to make it clear that the verdict might have been affected thereby. And while we think that the court below should ha've discharged the juror Steele on account of his admitted opinions in the case, yet it is difficult for us to say that the court below committed. material error in refusing to do so; and while we think that the court below might very properly have granted a new trial on the grounds of his prejudice and misconduct, and the previous failure on the part of the court to discharge him, yet it is difficult for us to say, under all the circumstances of the case, that the court below committed any material error in refusing to so grant such new trial. Parties are usually held to the strictest vigilance in impaneling juries, and generally if an improper person is allowed to remain on the jury through the fault or negligence or want of proper diligence on the part of any party, such party cannot complain. In the present case, the defendant knew that the juror Steele believed that the defendant had offered to confess judgment for a certain amount, and it knew that the juror believed that he knew what that amount was; and yet the defendant failed to challenge the juror peremptorily, although at the completion of the panel it still retained one of its peremptory challenges, unused and unexercised. We think, under such circumstances,, it would be proper to hold that the defendant was willing to take the juror as he was, and to take the chances of his acting fairly and impartially, in the case; and that if he did not do so with reference to the facts of which the defendant knew the juror had knowledge, the defendant should not complain. A party should not be allowed to decline to exercise his peremptory challenges in discharging supposed incompetent jurors, and thereby to keep the question open as to their incompetency until after it is ascertained that the verdict is against him, and then allow him to again raise the question as to competency. He should be compelled to use all reasonable means to discharge all objectionable jurors before the commencement of the trial; and the failure to do so must be considered as a waiver ,of all known objections. And afterward if the juror should act as it might reasonably be supposed he would act under the circumstances, the party failing to remove him, when he could so easily have done so if he had so chosen, should not be allowed to complain. In the present case, the ineompetency of the juror was slight and not very clear, and his misconduct was also slight, and not necessarily prejudicial to the defendant’s rights, and probably neither his incompetency nor his misconduct had any effect upon the verdict of the jury; but even if it had, it was partially the fault of the defendant in not removing him by one of its peremptory challenges. According to the testimony of .the several jurors, nearly all of them were in favor of assessing the damages at from $1,100 to $1,200, instead of $1,050, as they finally did; and it seems almost certain that if the juror Steele had not said a word, the verdict would not have been any less than it was. Such seems to be the testimony of all the jurors, and their testimony was oral, and in the presence of the trial court. Hence we cannot say, under all the circumstances, that the court below committed material error in refusing to grant the defendant a new trial on the ground of the incompetency and misconduct of the juror Steele. '
The plaintiff in error, defendant below, also claims that the court below erred-in refusing to give sixteen separate instructions asked by the defendant below. All that the defendant says in this court with reference |o these instructions is as follows : “ Each of these instructions correctly states the law as applicable to the case, and it seems to us should have been given to the jury by the court below.” The substance of the most of them was given by the court to the jury in its general charge, and that portion which was not given we think was properly refused. Evidently the defendant, plaintiff in error, does not know of any particular portion of these instructions which should have been given, and which was not given, or it would have pointed out the same to this court. Presumably, from the brief of the defendant below, plaintiff in error, no error was committed by the court below in this respect, and we think that no such error was in fact committed. Presumably, from the brief of counsel, the defendant below does not rely upon this point. The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Thul against the Atchison, Topeka & Santa Eé railroad company, to recover damages for injuries alleged to have been caused through the negligence of the agents and servants of the defendant. The alleged injuries occurred about the 15th of December, 1881. At that time Thul was in the employ of the defendant as a section hand; and as he and other employés of the company were going out from Topeka on a hand-car to their place of work, they met an approaching train; they took the hand-car off the track, and were standing near the track waiting for the train to pass. When the engine came opposite the plaintiff and his co-laborers, the plaintiff alleges that—
“ The fireman, engineers and servants of the said defendant in charge of said engine, needlessly, carelessly, caused the hot steam and hot water then in said engine and the boiler thereof, to be thrown, squirted and ejected with great force and violence upon the person of, and into the face and eyes of, the said plaintiff, .... and thereby wounded, bruised, injured, scalded and- burned the person, eyelids and eyes of the said plaintiff, so that . . . the sight of the said plaintiff was, and ever since has been, impaired,-injured, and destroyed,” etc.
The case was tried before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendant for $400 and costs; and to reverse this judgment the defendant now brings the case to this court.
Upon the trial, the plaintiff introduced his evidence, and rested. The evidence tended to prove the plaintiff’s entire case. It showed the manner in which he was injured, and the nature, character and extent of the injury. And the evidence, as well as the plaintiff’s petition, showed that it was the injury to the plaintiff’s eyes of which he principally complained. The plaintiff himself was a witness in the case, and testified in his own behalf. After the plaintiff rested his case, the defendant requested the court to have the plaintiff submit himself to the examinátion of Dr. A. D. Williams, who was then'present, from St. Louis, and whom it was stated the defendant would call as a witness. This request was made in the following words, to wit: “ If the court please, we-ask that the plaintiff in this case, John Thul, submit himself to the examination of Dr. Williams, a witness we shall call for the defense, now here from St. Louis.” This request was objected to by the plaintiff, in the following words, to wit: “We object, under the ruling of the 53d Missouri Report.” The court below sustained the objection, in the following words, to wit: “The objection is sustained.” And to this ruling of the court the defendant excepted. Counsel for the defendant then addressed the court as follows:
“What we want to do, if the court pléase, is, to have this plaintiff submit himself to the examination of Drs. Jones, Redden, Stormont, and Williams of St. Louis, whom we propose to produce as witnesses on the stand; and we ask the permission and order of the court that so many doctors .as we may desire may have an opportunity to make an examination of the plaintiff’s eyes in the presence of this court and jury”
To this the counsel for plaintiff responded as follows: “ We object.” And the court then answered as follows: “The objection is sustained.” To which ruling of the court the defendant again excepted. Afterward, counsel for the defendant. addressed the court as follows:
“ If the court please, the examination that we desire the plaintiff to submit himself to, and ask the court to order, is for the purpose of these doctors appearing upon the stand and testifying to the cause of his malady as it exists, the permanency of his injuries, and the cause that produced„them.”
After the evidence was closed, the court gave the following among other instructions to the jury:
“6. As to the measure of damages: If the jury find for the plaintiff they will assess the damages, taking into consideration the injury inflicted upon him, whether of a temporary or permanent character; his loss, if any, arising from any inability to perform labor or use his eyes in consequence of such injury; his loss of time, if any; his physical pain, and other circumstances connected, with said injury, and which may be reasonably attributable to it, and were caused thereby.”
We think these are about the only facts necessary to be stated, for the purpose of giving and insuring a corrrect understanding of the questions involved in the case as the same are now presented to us. It will be observed from the foregoing facts that the main question involved in this case is, whether the court below erred in overruling the defendant’s request for a medical examination of the plaintiff, and in sustaining the plaintiff’s objection to such request.
That portion of the 53d Missouri Report upon which the plaintiff made the objection, reads as follows:
“The proposal of'the court to call in two surgeons, and have the plaintiff examined d'uring the progress of the trial as to the extent of her injuries, is unknowp to our practice and to the law. There was abundant evidence on this subject on both sides: any opinion of physicians or surgeons at that time would have only been cumulative evidence at best, and the court had no power to enforce such an order.” (Loyd v. H. & St. Jo. Rld. Co., 53 Mo. 509, 515, 516.)
The objection, we would think from the facts of the present case and from this citation, was based upon the grounds that such a practice is unknown to the law, and that the court had no power to enforce the order for such an examination. We think it could not have been because there was already abundant evidence upon the subject in the case, for at the time the request was made no physician or surgeon or medical expert of any kind had testified in the case; and indeed at the close of the evidence no physician or surgeon or medical expert had testified in the case except Dr. Williams, and he could not testify intelligently upon the subject, for the "reason that he had made no personal examination of the plaintiff.
Upon the same question we would quote from a decision made by the supreme court of Iowa, in the case of Schrœder v. The C. R. I. & P. Rld,. Co., 47 Iowa, 375, 378, et seq.:
“III. The plaintiff must be regarded as objecting to an examination of the diseased parts of his body by competent physicians and surgeons, although no objection thereto was formally expressed by him. His resistance to the application made by defendant, and his objection to the interrogatory, must be regarded as a refusal on his part to consent to an examination. The first ruling of the court is based upon the ground that it possessed no authority to order the examination, as a matter of right possessed by defendant. We are to understand that the like reason controlled the decision upon the competency of the question objected to by defendant. It seems quite clear that, if defendant had no right to require plaintiff' to submit to an examination of his person, the court rightly decided in overruling defendant’s application. The same is true as to the ruling upon the interrogatory. If the plaintiff had answered the question negatively, or refused to answer, the court could not, in this view of the law, have required an answer, or required plaintiff to submit to the examination; therefore, if the rule recognized by the court is correct, it would have been vain to have ruled differently.
“ The converse of this proposition must be true, namely: if the defendant was entitled, as a matter of right, to have the person of plaintiff examined, the court possessed the authority and power to order it, and enforce its order. This cannot be doubted. As to the manner of enforcing the order, we may have something to say hereafter. As the decisions of the court under consideration were based upon the view that defendant could not demand the examination of plaintiff as a matter of right, the soundness of the decision must be first considered.
“IV. Whoever is a party to an action in a court, whether a natural person or a corporation, has a right to demand therein the administration of exact justice. This right can only be secured and fully respected by obtaining the exact and full truth touching all matters in issue in the action. If .truth be hidden, injustice will be done. The right of the suitor, then, to demand the whole truth, is unquestioned; it is the correlative of the right to exact justice. It is true, indeed, that on account of the imperfections incident to human nature, perfect truth may not always be attained; and it is well understood that exact justice cannot, because of the inability of courts to obtain truth in entire fullness, be always administered. We are often compelled to accept approximate justice as the best that courts can do in the administration of the law; but while the law is satisfied with approximate justice, where exact justice cannot be attained, the courts should recognize no rules which stop at the first, when the second is in reach. Those rules, too, which lead nearer the first, should be adopted in preference to others which end at points more remote. This doctrine lies at the foundation of the rules of evidence, though it must be confessed that the superstructure does not always fully conform thereto. Great progress, however, in a comparatively recent period, has been made, by legislation and judicial decisions, in the work of conforming the system of evidence to this germinal principle. The most notable of the steps in this progress is the abrogation of the rule which precluded parties to actions from giving testimony therein. This rule, however, was mistakenly supposed to be in harmony with the principle just stated. It was believed that the interest of parties to actions would cause them, as witnesses, to pervert the truth, ' or conceal it; but when it was discovered that, as a rule, this was an erroneous conclusion, legislation was invoked enabling parties to testify. The wisdom of the change has been fully indicated by experience.
“To our minds the proposition is plain, that a proper examination by learned and skilled physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exadt justice than in any other way. The plaintiff, as it were, had under his control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of truth, the right administration of the law, demand that he should have produced it.
“We will consider the objections urged to this view of the case. It hardly appears that the objections urged in the exceptions of plaintiff to defendant’s application ought to be here considered, as the court below held none of them good, but decided the point upon the ground that defendant asked for a matter to which it had no right. It is, however, proper to remark, that the inability of plaintiff to pay physicians who should make the examination, was no impediment to the order, as defendant proposed to furnish the means required. The facts that the' application was made after the jury was sworn, and plaintiff knew no physicians in the county of the trial, do not appear to be well-founded objections to allowing the order, for it does not appear that ample time could not have been allowed by the court for the examination in a manner that would have proved satisfactory to plaintiff. The fact that defendant had present in court so many physicians, charged by plaintiff with having an undue interest against him, was no sound objection, for the court could have refused to appoint any such to make the examination.
“ VI. But it is urged the court was clothed with no power to enforce obedience of plaintiff, had such an order been made. Its power, in our judgment, was amply sufficient to coerce obedience. The plaintiff would have been ordered by the court, by submitting his person to examination, to permit the introduction of testimony in the case. His refusal would have been an impediment to the administration of justice, and a contempt of the court’s authority. He would have been subject to punishment as a recusant witness who refused to answer proper questions propounded to him. Should such recusancy too long delay the court, or prove an effective obstruction to the progress of the case, the court could have stricken from the pleadings all the allegations as to permanent injury, and withdrawn from the jury that part of the case. The plaintiff, by voluntarily withdrawing his claim for such injury, would have been relieved from the necessity of submitting to the examination, and proceedings as for contempt would have been suspended. When it is remembered that plaintiff was a witness before the court, that the examination of his person would have had the effect to elicit testimony from him, as upon a cross-examination, the power of the court over him will be readily understood.
“VII. It is said.that the examination would have subjected him to danger of his life, pain of body, and indignity to his person. The reply to this is, that it should not, and the court should have been careful to so order and direct. Under the explicit directions of the court, the physicians should have been restrained from imperiling, in any degree, the life or health of the plaintiff. The use of anesthetics, opiates or drugs of any kind should have been forbidden, if, indeed, it had been proposed, and it should have prescribed that he should be subjected to no tests painful in their character. As to indignity to which an examination would have subjected him, as urged by counsel, it is probably more imaginary than real. An examination of the person is not so regarded when made for the purpose of administering remedies. Those who effect insurance upon their lives, pensioners for disability incurred in the military service of the country, soldiers and sailors enlisting in the army and navy, all are subjected to rigid examinations of their bodies, and it is never esteemed a dishonor or indignity. The standing and character of the physicians who should'have been appointed to make the examination, would not only have secured plaintiff from insult and indignity, but would have been a guaranty that nothing would have been attempted which would have endangered his life or health.
“VIII. We have been able to find no case in which the question before us has been considered, and we have been referred to no authority by counsel that seems to have much application thereto. The courts have held in divorce cases, when the impotency of a party is in question, an examination may be ordered of the person alleged to be impotent. See 2 Bishop on Marriage and Divorce, § 590, et seq., and notes. The foundation of this rule is the difficulty of reaching the truth in any other way than by an examination of the person. The authorities referred to may be regarded as giving some support to our conclusion.
“IX. It is the practice of the courts of this state, sanctioned by more than one decision of this court, to permit plaintiffs who sue for personal injuries to exhibit to the jury their wounds or injured limbs, in order to show the extent of their disability or suffering. If for this purpose.the plaintiff may exhibit his injuries, we see no reason why he may not in a proper case and under proper circumstances be required to do the same thing for a like purpose upon the request of the other party. If he may be required to exhibit his body to the jury, he ought to be required to submit to an examination of competent professional men.”
Mr. Bishop, in his work on Marriage and Divorce, speaking of medical and surgical examinations of the parties in actions in which the question of incurable impotence is involved, says that “In England, Scotland, France, and probably every other country where this impediment to marriage has been acknowledged, the courts have compelled the parties, when necessary, to submit their persons to such an examination;” and “unless this rule of .inspection is repugnant to our institutions and positive laws, it must be deemed to have been imported into this country by our forefathers.” And he favors the proposition that the rule, has been adopted in this country, citing several cases, among others the cases of Devanbagh v. Devanbagh, 5 Paige, 554, 556; Newell v. Newell, 9 Paige, 25; Lebarron v. Lebarron, 35 Vt. 365; Anonymous, 35 Ala. 226. (2 Bishop on Marriage and Divorce, § 590, et seq.)
In criminal cases a personal inspection of the defendant is generally not allowable, for an order of the court compelling the defendant to submit to a personal examination would virtually be compelling the defendant to “be a witness against himself,” which is not allowable under § 10, bill of rights, of our constitution. However, where the examination is only for identification it is sometimes allowable. (State of Nevada v. Ah Chuey, 14 Nev. 79.) In the case just cited one of the witnesses testified that he knew the defendant, and knew that he had tattoo marks (a female head and bust) on his right forearm; and the court thereupon compelled the defendant, against his objection, to exhibit his arm in such a manner as to show the marks to the jury. The only eases to which we have been referred, or of which we have knowledge, which are strictly applicable to the present case, are the cases already cited from Iowa and Missouri. The Iowa case seems to be a carefully considered case, while the Missouri case does not; and hence, other things being equal, the Iowa case is entitled to the greater weight and consideration; and indeed upon general principles we would think that it comes nearer expressing the true and correct doctrine upon this subject. The tendency of modern adjudications and of modern thought is to open the door as wide as possible for the introduction of all evidence that may throw light upon the particular subject then undergoing investigation. All attainable evidence and instruments of evidence, within certain limitations, may be pre sented to the jury for their inspection and consideration, and all proper modes of investigation or inspection may be resorted to for the purpose of enabling the jury to arrive at just and correct conclusions. Many instruments of evidence, however, can be examined only by the aid of experts, and in all such cases the aid of experts is not only allowable, but may be demanded as a matter of right by the party needing such aid.
It was shown in the present case by the testimony of Dr. Williams that the nature, the extent and the .permanency of the injury to the plaintiff’s eyes could not be determined with any reasonable degree of accuracy except by a careful examination, made by some oculist or person who had made diseases and affections of the eyes a special study; and we would naturally suppose that such would be the case, independent of the testimony of Dr. Williams. Hence it would seem that in a case like the present the evidence of some such expert who had made such an examination would be an almost indispensable necessity; but such evidence in many cases could not be obtained unless the plaintiff were first compelled by an order of-the court to submit himself to a personal examination by some such expert. Now is such evidence to be lost and justice possibly defeated, or may the court order that such an examination may be had? We favor the proposition contained in the latter portion of this alternative. We would think that the defendant in a ease like the present would be entitled as a matter of right, upon a proper application and upon a proper showing, to have an order made by the court compelling the plaintiff to submit himself to a personal examination, for the purpose of ascertaining the nature, character, extent and permanency of his injuries; but of course the court should exercise a sound judicial discretion in making such an order. The right to the order, being founded upon necessity, would not of course extend beyond the necessities of the case. If sufficient evidence of this kind had already been introduced, the court of course would not be bound to make the order for the purpose of obtaining other merely cumulative evidence. This principle will perhaps explain the ruling of the Missouri court in the case of Loyd v. The H & St. Jo. Rld. Co., ante, for the court in that case in deciding the question says that “ There was abundant evidence upon this subject on both sides: any opinion of physicians or sui’geons at that time would have only been cumulative evidence at best.” The court of course would not be required to order an examination of the plaintiff by a greater number of experts than was actually necessary for the purposes of justice, and it would not be required to make the order unless the proposed experts were really competent to make the examination. The court would also have the right to exercise its discretion in other particulars as suggested by the decision in the Iowa case.
As before stated, we think the court below in refusing to make any order in the present case, did so solely upon the grounds that such a practice is unknown to the law, and that the court had no power to enforce such an order. In this we think the court below was mistaken. We think the order should have been made; and that the court had ample authority to enforce the same if it had been made and resisted.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Susan B. Church against the city of Sedan, for injuries alleged to have -resulted from a fall occasioned by obstructions on a sidewalk. The case was tried before the court and a jury, and the jury found a general verdict in favor of the defendant and against the plaintiff; and the plaintiff then moved for a new trial, upon the grounds that the verdict was contrary to the law and the evidence, and that the court erred in refusing to admit certain evidence, and in refusing to give certain instructions to the jury. The court sustained the motion, and granted a new trial; and the defendant now, as plaintiff in error, brings the case to this court, and asks for a reversal of the order of the court below granting the new trial. No new trial has yet been had, no final judgment has yet been rendered, and no final order has yet been made; but the action is still pending in the court below, undisposed of.
For the purposes of the case, we shall assume that upon the preponderance of the evidence the verdict of the jury was correct; and we shall also assume that the petition of the plaintiff below is not as formal, or as complete, or as artistically drawn, as it should be; and still we think the order of the court below granting the new trial must be affirmed, for although the petition is inartistically drawn, still we think it states sufficient facts to constitute a cause of action; and the evidence introduced on the trial on the part of the plaintiff would, if it were not contradicted by other evidence, be sufficient from which a verdict might have been found in favor of the plaintiff. Besides, there were other reasons for which the court below may have granted the new trial, and which might, if we could understand them just as well as the court below understood them, be sufficient to authorize the granting of the new trial. Trial courts are invested with a very large and extended discretion in the granting of new trials; and new trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand .them as well as the trial court and the parties themselves understood them. And generally where the trial court grants a new trial- to one party, it would be best for the other party, if he supposes he has a reasonably good case, to rely upon the new trial, and the verdict or finding to be obtained at the new trial, in preference to immediately taking the case to the supreme court; for unless the supreme court can see, beyond all reasonable doubt, that the trial court has manifestly and materially erred with reference to some pure, simple and unmixed' question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made, the supreme court will not reverse the order of the trial court granting the new trial. Where a new trial is granted, both parties are afforded another opportunity to have a fair and impartial trial upon the merits; but where the new trial is refused, the parties are deprived of such opportunity, and no opportunity is given to either of the parties or to the court for the correction of any errors or mistakes which may have intervened during the original trial; and by such refusal, irrevocable injustice may be done to the party asking for the new trial. The supreme court will very seldom, and very reluctantly, reversé a decision- or order of the trial court which grants a new trial. A much stronger case for reversal must be made where the new trial is granted than where it is refused. Upon this question we would refer to the authorities cited in the case of Brown v. A. T. & S. F. Rld. Co., just decided by this court.
The judgment of the court below will be affirmed.
All the Justices. concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action in ejectment, brought by defendant in error, plaintiff below, to recover the possession of. a tract of land in Jackson county. The petition was simply in the short form authorized by the statute, and alleged that the plaintiff was the owner and entitled to the possession of the land. The defendants answered, first by a general denial, and further by a count in which they alleged that they were the owners and in the possession, and also that they held certain tax titles upon the property. They also stated that they had paid a certain amount of taxes, and had made lasting and valuable improvements to a certain amount, and prayed that they be adjudged the owners; and that if they were defeated in the action, plaintiff should pay to them the amount of such taxes and improvements. They also prayed for such other and further relief in the premises as should be just and proper. To this answer, or rather to so much of it as constituted a counterclaim and cause of action for affirmative relief, the plaintiff demurred; the demurrer was sustained by the court, and the defendants allege error. The defendant in error, plaintiff below, in his brief states that this last defense amounts to nothing more than a general denial, and that all the facts stated therein could have been proved under the first count in the answer. If it were true that this last count was simply a repetition of the first count, and absolutely nothing but a general denial, then of course it would be error for the court to sustain the demurrer thereto; because the fact that the same defense is repeated in several counts does not authorize the sustaining of a demurrer to any of them. If any relief is needed it should be by a motion to strike out. It is true in such cases, if the last count was simply a repetition of the first, the sustaining of the demurrer would not be prejudicial error; because when once stated, it is unnecessary to restate a defense; but in the case at bar the demurrer ran professedly only to that portion of the answer which was supposed to state a counterclaim and a demand for affirmative relief; and the real question for our consideration, the ques tion upon which the district court ruled, is whether the defendants’ answer fully states a claim for affirmative relief. This question we think the district court ruled correctly upon. As defendants were in possession, they could not maintain an action of ejectment. That which they attempted was the stating of a cause of action for quieting their title; and while in this they alleged that they were the owners and in possession, and showed the nature of their title, they failed to allege that plaintiff made an adverse claim. It is true that the plaintiff, by bringing the suit, did in fact set up a claim to the property; but the answer must be tested by what it contains. It has been held by this court in Wright v. Bachellor, 16 Kas. 259, that when an answer sets up a counterclaim or cause of action for affirmative relief, it must be as full and complete as though it were a petition in an independent action. Now as this answer fails to allege that the plaintiff or anybody else is making an adverse claim, or in any manner to challenge defendants’ title, it fails to show a cause of action, either under the statute, or under the old practice for quieting title. (Douglass v. Nuzum, 16 Kas. 515.) It cannot for a moment be contended, that if the answer were filed as a petition in an independent action, it states a cause of action against any party because it simply states that the defendant owns, the property and is in possession, and it does not show that anybody is challenging his title or possession. Suppose the plaintiff in this action had dismissed his cause of action, as he had a right to do, and as in fact was done in a case similar to this, and which was submitted with this for decision: then the only pleading, the only thing upon which the trial could be had, would be this answer; and that, as we have stated, fails to show that anybody is doing or threatening any wrong to th.e rights of the defendants. We think, therefore, so far as respects the question discussed by counsel and which was passed upon by the district court, there is no error. We do not mean to hold that the facts stated in this last count do not constitute a defense to plaintiff’s cause of action; neither do we hold that a party may not, in addition to a general denial in an ejectment action, set out in a further count in detail the facts constituting his claim of title, and have the question of the sufficiency of those facts as a defense settled before the trial upon a demurrer filed thereto. Those are questions not ruled upon by the district court in this case, or presented to us for consideration. All we decide is, that the answer does not contain a statement of facts sufficient to constitute a counterclaim, or a cause of action for affirmative relief; and this upon the ground that the answer fails to show any adverse claim on the part of the plaintiff.
The ruling of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On November 12,1875, and prior thereto, Burton Crane and Sibby Crane, now Sibby Fipps, were husband and.wife. On that day, Sibby Crane obtained ¡ decree granting to her a divorce and $50 alimony, from h r said husband, on account of the “fault” and “aggression” of her husband. At the time when the decree of divorce was rendered, Burton Crane owned 240 acres of land, situated in Johnson county, Kansas. Afterward, Sibby Crane was married to one Joseph Fipps, with whom she is still living. Afterward, Burton Crane died, leaving as his heirs the following children, to wit: William Crane, Thomas Crane, Frank Crane, Peter Crane, Samuel Crane, Carter Crane, and Susan Crane Andrews. Burton Crane was still the owner of said land when he died. Sibby Crane Fipps afterward commenced this action against the children and heirs of Burton Crane, asking to have “her dower” “set off to her, in the lands aforesaid.” The defendants demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action; but the court below overruled the demurrer, to which ruling the defendants excepted, and now bring the case to this court for review. They claim that the plaintiff below, defendant in error, has no right of dower or any interest in the land in controversy.
The statutes upon which this case is to be decided are as hereinafter stated and quoted. Prior to 1868, there was a statute in force relating to dower, giving the widow at her election dower in her deceased husband’s real estate. (Comp. Laws of 1862, ch. 83.) But in 1868 this statute was repealed, and the estates of dower and by curtesy were abolished. (Gen. Stat. 1868, eh. 33, § 28; Comp. Laws 1879, ch. 33, § 28.) Section 646 of the civil code, as enacted in 1868, reads as follows:
“Sec. 646. When the divorce is granted for the fault of the husband, the court may adjudge to the wife a reasonable sum as alimony, to be paid by the husband in gross, or in installments, out of his estate; and any such allowance shall have the same effect, and may be enforced, as any other money judgment.” (Gen. Stat. 1868, ch. 80, p. 758.)
Afterward, and in 1870, this section was amended so as to read as follows:
“Sec. 646. When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to all her lands, tenements and hereditaments not previously disposed of, and restored to her maiden name, if she so desires, and shall be allowed such alimony out of her husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable; and if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed her as alimony, of which he was seized at the time during the coverture, to which she had not relinquished her right of dower; but if the divorce shall arise by reason of the fault or aggression of the wife, she shall be barred of all right of dower in the lands, of which her husband shall be seized at the time of the filing of the petition for divorce, or which he may thereafter acquire, whether there be issue or not; and the court shall order restoration to her of the whole of her lands, tenements or hereditaments not previously disposed of, and also such share of her husband’s real or personal property, or both, as to such court may appear just and reasonable.” (Comp. Laws of 1879, ch. 80, p. 691.)
The plaintiff relies upon the following words contained in amended § 646, to wit:'
“And if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband not allowed her as alimony, of which he was seized, at the time during coverture, to which she had not relinquished her right of dower.”
It will be seen that this is only a very small portion, and comparatively a very unimportant portion, of the new matter inserted in the amended section. The section was evidently amended for the purpose of inserting the other new matter, and not merely for the purpose of inserting this. It was copied substantially from §§ 5699 and 6700 of the revised statutes of Ohio; and the clause upon which the plaintiff relies in this case was permitted to remain in the section, notwithstanding the difference between our laws with regard to dower and the laws of Ohio. In Ohio, a widow is entititled to dower, but in this state she is not. It has been decided by the supreme court of Ohio, in the case of Lamkin v. Knapp, 20 Ohio St. 454, that this provision in the Ohio statutes simply saves and reserves to the divorced wife the .right of dower which she would have had by virtue of other statutes in her husband’s lands if she had not been divorced; and there is no claim or pretense in Ohio, as we understand, that this provision creates any new right of dower. We think the provision must be construed the same way in this state. It was simply intended by this provision to reserve to the divorced wife just such right of dower as she might be entitled to by virtue of other statutes at the time of the divorce, and nothing more or less. But as the statutes giving the right of dower to wives and widows had previously been repealed, and as all right of dower had previously been abolished, and as no new law giving any right of dower had subsequently been enacted, this provision could not in the present case be operative. It would not in fact give to the divorced wife anything.
It is claimed, however, that the word “dower” in said provision should be construed to mean inheritance, and therefore that she should take under the laws relating to descents and distributions. Now such cannot be the case; for jf the legislature had intended inheritance, it would have said so. Besides, to construe the word “dower” to mean inheritance would do great injustice, which we cannot suppose the legislature intended. In fact, however, we suppose that the leg islature devoted but very little consideration to this particular subject; but so far as it did, it undoubtedly intended that the divorced wife should not have any interest in her former husband’s estate greater than that allowed by the court as alimony, and the mere right of dower; and dower only after some act should be passed giving to wives or widows a right of dower in their deceased husband’s estates. The plaintiff, however, claims that she has a present right of dower, or right of inheritance, or some other right, in her former husband’s lands, without the passage of any additional statute. Now, for the purposes of the argument, suppose she has: then is she to have her dower or inheritance or other interest in two husbands’ estates at the same time — in her former husband’s estate and in her present husband’s estate? And suppose that her former husband, after the divorce is granted, marries again, and then dies: will both his wives or widows take an interest in his lands? Under the act relating to descents and distributions, (Comp. Laws 1879, ch. 33,) his real wife will take one-half of all his real estate, and his children will take the other half; then what is there left for his divorced wife to take? Can she take still another half, or some other portion of his estate? Or suppose he dies without leaving any real wife, as in the present case: then, under the act relating to descents and distributions, his children — seven in number in the present case — f will take the whole of his estate. Then what will his divorced wife take? And in all cases the act relating to descents and distributions provides for the distribution of the whole of a deceased person’s estate to others than the divorced wife, and does not provide for giving anything to her. Will the act relating to descents and distributions govern, or will the clause in § 646 of the civil code, upon which the plaintiff relies, be construed as repealing or modifying the act relating to descents and distributions, so that the divorced wife may take something? Repeals and modifications by implication are seldom favored. The former husband’s children might, however, in some cases, all be born after the divorce was granted, and as children of a second wife: then would the divorced wife take all of her former husband’s estate, and would this second wife and her children be debarred from taking any portion of the same? The act relating to descents and distributions would give it all to the second wife and her children ; but the plaintiff, we suppose, would claim that all should go to lrer under said clause of § 646 of the civil code. If the former husband had died on the day before the divorce was granted to the divorced wife, his then wife, she would undoubtedly have taken all his estate under the act relating to descents and distributions; and why should she lose this right, if said clause of § 646 of the civil code reserves to her all her rights in her former husband’s estate? Are the laws wrong in permitting the former husband to marry again and have children? Or suppose, when' the former husband dies, it is found that all his land which he had owned during the coverture of his divorced wife, and to which she had not relinquished her right of dower, had been sold at judicial sale to pay his debts, or was necessary to pay his debts: then would she take the land from her former husband’s creditors and from the purchasers who purchased the same at judicial sale? If she is entitled to any interest in the land of her former husband under the said clause of § 646, she would take the same from creditors, and from purchasers at judicial sale, as well as from others, for there is no exception or limitation in this respect. She would therefore be in a better condition than a real wife would be, for a real wife cannot take any interest in her husband’s lands which have been sold from him at judicial sale, or which are necessary for the payment of his debts. (Comp. Laws of 1879, ch. 33, § 8.) If this is the proper interpretation to be given to the statutes, then they certainly tend to encourage wives to obtain divorces; for divorced wives would have rights which they could not have as real wives; and if a divorced wife would not lose this additional right by marrying some other person, as the plaintiff in this case claims she would not, then would she lose such right if she should remarry her former husband? But suppose her former husband after the divorce should marry some other woman, and then suppose that he should desire to sell his land: would he then have to go to both his wives — his real wife and his divorced wife — and get them to sign the deed? And must purchasers of real estate take notice whether the vendor has a divorced wife living, or not, and see that she, as well as the real wife, signs the deed?
Now we do not think the legislature ever contemplated or intended any such difficulties. It really intended that said clause in § 646 of the civil code should be inoperative until some other legislation should be had, giving it operation without such great inconvenience and injustice as must ensue if it is given operation without additional legislation.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the trial of this case the district court sustained a demurrer to the evidence of the plaintiff, upon the ground that his field was not properly protected by a legal or sufficient fence. If a court is satisfied that, conceding all the inferences which a jury could justifiably draw from the evidence offered by the plaintiff, it is insufficient to warrant a verdict for him, the court has the right to sustain a demurrer thereto. The most that can be said from the evidence is, that the defendant turned his cattle into his own field, and that they strayed or wandered over upon a little neck of land east of his field, and thereby in running at large upon .said neck of land wandered or entered from thence upon the land of the plaintiff. The-evidence does not tend to show that the defendant cultivated or occupied the land where the. fence was defective. His grantor denied he owned this portion of the premises, and plaintiff attempted to sustain occupation or use thereof on the part of the defendant, by his statement that “this occupation of the little neck of land by defendant consisted only of his turning his stock on the land described as the west half of the northwest quarter of section number fourteen, at the west side of the quarter-section, and letting them roam therein at will, and from the fact that there was no fence line north of the oak tree from the partition fence (so called) as built to the Marais des Cygnes river to exclude cattle from going out while upon the little neck of land.” The fields, according to the fair inference of the testimony, extended only to the oak tree near the so-called partition fence, and did not include the land where said fence was defective and out of repair. If there was no fence from the oak tree to the Marais des Cygnes river as testified to, then defendant by turning his stock into an uninclosed field merely turned them out to run at large upon open and uninclosed land. Under these circumstances, all that can be said is, that after the cattle had been turned by the defendant into his own field, they passed or wandered out upon land not occupied or improved by him, and from thence they entered upon the premises of the plaintiff through a defective fence, which it was not the duty of the defendant to maintain or repair; so it is the same as if the defendant’s cattle, running at large upon open and uninclosed land, had broken into the premises of plaintiff at a place where there was an insufficient fence. Upon the facts testified to, plaintiff did not bring himself within the authority of Baker v. Robbins, 9 Kas. 303, and the question of maintaining or repairing the partition fence is not before us, as defendant did not occupy or improve the little neck of land where said fence was located.
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
Valentine, J.:
This was an action in equity to declare a trust, and for the recover^ of certain real estate. The facts of the case, stated briefly, are substantially as follows: On July 13, 1857, the United States conveyed by patent to Silas Armstrong, a certain tract of land in Wyandotte county, Kansas, known as “Wyandotte reserve No. 1,” lying north of the Shawnee reserve, and between the Kansas and Missouri rivers and the line between the states of Kansas and Missouri. At the date of the patent there were several settlers upon the land claiming rights under the preemption laws, among whom was one James Gladden, the grantor of the present plaintiff, Mary A. Yea-mans. Litigation arose between Armstrong, the patentee, and these settlers, concerning their respective claims to the land. On July 8, 1858, these settlers jointly and severally executed a power of attorney to David E. James, a lawyer, by which the settlers jointly and severally appointed James their attorney to conduct, prosecute and defend all suits then pending, or to be brought, between Armstrong, or any person claiming under him, and themselves; and they also gave to James full power and authority to settle and compromise all their disputes concerning the land. This power ,of attorney was duly acknowledged and recorded. On July 10, 1858, James Gladden, one of the settlers and one of the persons who executed said power of attorney, with his wife, executed a quitclaim deed, conveying to George B. Wood all of Gladden’s interest in the land. This deed of conveyance was handed to David E: James, to be held, as James and Gladden claim, in escrow, to be delivered to Wood upon his pay ing the'full consideration therefor. Wood, however, claims, that the deed was an absolute deed, and was to take effect on the day of its execution, ’and that the delivery of the same to James, whom he claims was his partner, was a delivery of the deed to him. The testimony of Wood shows that upon the execution of the deed Gladden gave possession of the land to Wood. In the fall of 1858, Gladden removed from Wyandotte county to Miami county, and has never returned to the land. On July 18, 1859, James effectedTa compromise and settlement with Armstrong. The compromise was in writing, and was executed by Armstrong and wife on the ope part, and by James, in his own name and in the name of the several settlers, on the other part, and provided, among other things, that Armstrong should convey to James an undivided three-eighths of the tract of land lying north of the old bed of Turkey creek, being about ninety acres, subject, however, to a mortgage to Armstrong of fifty dollars per acre, to be paid- out of the first proceeds of sales of the land; and also, that Armstrong should convey to them an undivided half of the land lying south of Turkey creek. James and the -settlers wére to release by quitclaim deed, to Armstrong all their interest in the remaining portion of the land. These stipulations of the compromise and settlement were fully carried out. The deed from Armstrong was taken in the name of James, for himself and the settlers. The only land now in controversy is a portion of the land previously occupied and claimed by Gladden; but, as before stated, Gladden was not in the possession of the land at the time this compromise and settlement were effected. It was then in the possession of Wood; and ever since that time Wood and the other defendants in this case have been in the possession of the land, claiming to own the same and paying the taxes thereon. James and Gladden not only claim that the deed executed by Gladden to- Wood was only an escrow, but they also claim that Wood never complied with the conditions authorizing the delivery of the same; and therefore that Wood’s inchoate right to Gladden’s interest in the land utterly failed. This, however, Wood disputes. Wood claims that the deed was an absolute deed; that it conveyed to him all of Gladden’s interest in the land; and that he performed all the conditions with respect to the deed and the land which he was required to perform! If we could say that Wood’s claim is correct, it would require an affirmance of the judgment of the court below, rendered in this case. But we cannot under the findings so say; and therefore, for the purposes of this case, we shall assume -that the transaction, in this particular was such as it is claimed to have been by James and Gladden. On March 5, 1860, James surrendered to Gladden the deed or escrow executed by Gladden to Wood, and made a settlement with Gladden concerning all the transactions previously had between them. Instruments in writing were executed and delivered by James and Gladden- to each other respectively, as follows:
I, James Gladden, do hereby certify, ratify'and fully confirm all acts and agreements whatsoever, made and entered into by virtue of a certain power of attorney by me given to David E. James, attorney at law, bearing date the 8th day of July, 1858, and which power of attorney was given for the purpose of conveying, or settling, or compromising certain suits pending between me and one Silas Armstrong, concerning certain real estate, &c.; and I do furthermore hereby acknowledge in full force and absolute settlement the receipt of a bond for a deed of my full portion of said real estate, obtained by said James from said Armstrong in their final compromise of my said suits, namely: my original claims, as against said Armstrong, being about forty acres, after allowing said David E. James; claiming under a deed of convey-once from one Willis Wills, his full preemption claim of one hundred and sixty acres on the land adjoining mine, according to- a certain agreement and understanding between said Wills and myself as settlers on said lands, under and by virtue of his priority of settlement and preemption.claim made on said lands; and in accordance and by virtue of said compromise between said Armstrong and said James, my attorney, I do hereby acknowledge in full and absolute settlement the receipt of said bond for a deed to one three-eighths of said forty acres, being fifteen acres; and having allowed my said attorney, James, five acres of the same for his fees and for moneys expended in the litigation of said suits, &c., I do, therefore, receive and accept in full and absolute and final settlement between said James and myself and all others claiming under me, the aforesaid bond for a deed to one undivided ten acres of my original claim of forty acres, in the west one-half of the S.W.-J of section No. eleven (11), and in the east one-half of S.E.-j- of section No. ten (10).
Received also a certain deed as demanded in the notice attached hereto.
In witness whereof, I hereunto set my hand and seal, this 5th day of March, A. D. 1860.
His
James X Gladden.
In presence of Joseph E. Snyder, Henry R. Seeger.
State oe Missouri, County oe Jackson, ss. Sworn to and subscribed before me, this 6th day of March, 1860.
[Seal.] Jno. S. Hough, Cl’k
By Louis P. Scott, D. C.
Know all men by these presents, that I, David E. James, of the county of Wyandotte and territory of Kansas, do hereby bind myself, my heirs and assigns, to convey unto James Gladden, his heirs and assigns, by a good and valid deed, one undivided ten acres of the west half of the S.W.J of sec: No. eleven (11), and of the E.J of the S.E.J of sec. No. ten (10), in T. No. eleven (11), being in the forks of the Kansas and Missouri rivers, in the county of Wyandotte, K. T., and all consisting of one undivided ten (10) acres. It is hereby covenanted and agreed that the aforesaid conveyance shall be made at any time within one year from the date of this instrument. It is also agreed and understood that said conveyance is to be made subject to and in accordance with the terms and conditions of a certain mortgage given upon said real estate by said James to one Silas Armstrong, apd which is recorded in the proper office of the county of Wyandotte, K. T.
In witness whereof, I have' hereunto set my hand and seal, this 5th day of March, 1860.
David E. James. [Seal.]
On the same day, Gladden assigned this bond to Henry R. Seeger by an instrument indorsed on the bond as follows:
Know all men by these presents, that I, the within-named James Gladden, in consideration of one thousand dollars to me in hand paid by Henry R. Seeger, the receipt whereof I do hereby acknowledge, have bargained, sold, assigned and set over all my right, title, interest, claim, property and demand whatsoever in and to the within bond, unto the said Henry R. Seeger and his assigns forever.
In witness whereof, I have hereunto set my hand and seal, this 5th day of March, A. D. 1860.
His
James X Gladden, [l. s.]
, In'presence of Louis R. Scott, Joseph E. Snyder.
State of Missouri, County of Jackson. Be it remembered, that on this 6th day of March, 1860, before me, John S. Hough, clerk of the Kansas City court of common pleas, for Kaw township, in the county and state aforesaid, personally appeared James Gladden, who is well known to me as the person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his voluntary act and deed for the uses and purposes therein mentioned.
In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at office in the City of Kansas, on the day and date above written.
[l. s.] John S. Hough, Clerk.
By Louis B. Scott, Deputy.
Recorded October 1, 1860, at 5 P. M.
V. J. Lane, Register of Deeds.
By James A. Cruise, D. R.
This bond and the assignment were recorded in the office of the register of deeds of Wyandotte county, Oct. 1, 1860.
Afterward, James satisfied his bond by a conveyance to one Joseph E. Snyder, by direction of Seeger, as evidenced by another indorsement on the bond, of which the following is a copy:
State of Missouri, Jackson County, ss. In consideration of one dollar to me in hand paid, and the absolute fulfillment of the within bond, by conveyance of six acres of land to Joseph E. Snyder, by a deed dated July 27, 1864, and recorded on the 23d of October, 1868, in liber L of deeds, on pp. 135 and 136, in the office of register of deeds in and for the county of Wyandotte, state of Kansas, this bond, re corded in said office in “Record A,” p.462, is hereby canceled and discharged, and absolutely fulfilled.
Henry R. Séeger.
Kansas City, Mo., April 28, 1869.
Witnessed by Joseph E. Snyder and R. Laths.
Recorded July 1, 1869, at 9 o’clock A. m.
James A. Cruise, Register of Deeds.
The mortgage of $50 per acre held by Armstrong upon the land conveyed to James, in pursuance of said compromise and settlement, was paid and satisfied by Lewellyn E. James, the son of David E. James. In August, 1871, David E. James died; and many of the other principal actors in the foregoing transactions, including Armstrong and. Wills, had also died before or about this time. On March 4, 1874, Gladden, who was then a resident of Buchanan county, Missouri, executed a deed for the land in controversy to Mary A. Yeamans, the plaintiff in this action, for an expressed consideration of $17,500; and thereupon, on July 11, 1874, Mrs. Yeamans commenced this action, in the district court of Wyandotte county, against the heirs of David E. James, deceased, and also against George B. Wood and Luther H. Wood, for the purpose of obtaining a decree that the defendants held the legal title to the land in trust for her benefit, and for the purpose of recovering the land from them. The defendants answered, setting up a general denial, and several other defenses. The case was tried by the court without a jury, at the July term, in 1876, and on December 23, 1876, the court made special findings of law and of fact, and rendered judgment in favor of the defendants, and against the plaintiff for costs. On June 20, 1879, a case was settled and signed by the judge of the district court for the supreme court, and on December 13,1879, the case, with a petition in error, was filed in the supreme court. On October 3, 1882, the the case was submitted for decision to the supreme court, but even then the plaintiff, with the permission of the court, took twenty days further time within which to file a brief in reply to the brief of the defendants in error.
It will be observed that many of the principal facts in this case are identical with many of the principal facts involved in the cases of Yeamans v. James, 27 Kas. 195; Wills v. Wood, James, et al., 28 Kas. 400; and Wilkins, et al., v. Tourtellott, et al., 28 Kas. 825. There is however this difference: in none of the other cases was the fact of the settlement in 1860 between James and Gladden involved, while in this ease the decision of the court below was founded principally upon the fact of such settlement, and the subsequent facts growing out of the same. The plaintiff in error raises several questions iu this court, some of which have already been qec'qeq jn j-jje cases above referred to. Those questions already decided we shall not again discuss. There are still other questions raised or claims made by the plaintiff in error, which are so manifestly untenable that we shall not discuss them. We shall, however, mention the principal points made by the plaintiff in error.
The plaintiff in error claims that “the court erred in its third finding of fact, in finding that David E. James agreed to pay Silas Armstrong $50 per acre for the land deeded to James, the agreement as appears by the evidence being merely to subject the land so conveyed to the burden of $50 per acre.” We think the finding of the court below is substantially correct. James did agree to pay said amount, and the land was conveyed subject to such payment.
The plaintiff in error also claims that “ the court erred in its sixth finding of fact, 'that in March, 1860, the said David E. James and Gladden compromised and settled their respective claims to said land, and that said Gladden deeded all his interest therein to said James and his grantees.’” Now the court below did err, as it is claimed by the plaintiff in error. While the settlement and, compromise were undoubtedly made between James and Gladden, as found by the court, yet Gladden did not deed his interest in the land to James and hjs grantees; but he simply released his interest therein, to James and his grantors. The title to the land was already in James, and there was no necessity for Gladden or anyone else to execute any deed to James. Gladden released his claim to five acres of the land to James, and he transferred the title bond given by James to Gladden for the other ten acres, to Seeger, and Seéger released his claim to the ten acres to James. This placed the entire title to the land, equitable as well as legal, in James, and as fully as though Gladden had executed a formal deed of conveyance for the land to James. We think the error of the court in this finding is wholly immaterial, and is not sufficient to authorize a reversal of the judgment.
The plaintiff in error also claims that “the court erred in its seventh finding of fact, ‘that said last-mentioned settlement was free from fraud or deception.’” We think this finding is warranted by the evidence. The settlement was made on March 5, I860, a long time after the compromise between James and Armstrong, and at a time when Gladden ought to have known all the facts with reference to the same, and with reference to his rights as between himself and James, and many years afterward elapsed before Gladden supposed himself to have been defrauded; and this although James and the other defendants continue ouslv occupied the land, claiming it as their own. If Gladden had really supposed that the settlement between himself and James was not fair, why did be not commence an action to set aside such settlement, and to recover the land ? This he did not do, and it does not appear that he ever even thought of doing so, The evidence certainly warranted the court in making the affirmative finding as it did, that the “ settlement was free from fraud or deception.” But suppose that it was not free from fraud and deception: can it be supposed that Gladden did not discover the fraud until within two years next preceding the commencement of this action ? And therefore, even if fraud was committed, is not the plaintiff’s claim barred ? (Civil Code, § 18, subd. 3.)
The plaintiff further claims that the court below erred in refusing to permit th§ said Gladden to testify with respect to certain matters. Now this testimony was with respect to cer tain transactions had between Gladden and James. Since these transactions were had, James died, and the defendants now hold under him, and Gladden transferred his interest to the plaintiff; and hence we think the evidence was incompetent. (Civil Code, §322; Wills v. Wood, 28 Kas. 400.) Besides, by this testimony of Gladden the plaintiff attempted to contradict the contents of a written ■ instrument. This we also think rendered the evidence incompetent.
Thesé are about the only questions which we need to mention specially. The other questions presented by the plaintiff we have carefully considered, and do not think they are tenable; and upon the entire facts of the case we think the judgment of the court below was right — technically, legally, and equitably right — and it ought to be affirmed. Courts of equity seldom encourage speculation in stale and doubtful claims; they seldom encourage the over-7 J ° turning of settlements voluntarily made and long acquiesced in; and they seldom encourage the disturbance of titles, long vested, long enjoyed, and where all the parties for many years have acted as though they considered all questions with reference to titles as equitably settled and permanently at rest; and where many of the original parties and their witnesses have passed away, and. much of their evidence in the meantime has been lost or destroyed; and where the titles can no longer be examined by courts of equity, or any courts, with that certainty of doing justice which could have been done at the beginning, while all the parties and their witnesses were living, and while all the evidence was fresh and easily to be obtained. Peace and repose are generally better in such cases than disturbance and turmoil.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The single question in this case is as to the constitutionality of what is known as the retaliatory section of our insurance law. That section reads as follows:
“Whenever the existing or future laws of any other state or government shall require insurance companies organized under the laws of this state, applying to do business by agencies in such other state or government, or of the agents thereof, any deposit or security in such state for the protection of policyholders therein, or otherwise; or any payment for taxes, fines, penalties, certificates of authority, licenses, fees or otherwise, greater than the amount required for such purposes from insurance companies of other states by the then existing laws of .this state, then, and in every case, all companies of such states or governments, establishing agencies in this state, shall make the same deposit, for a like purpose, with the superintendent of insurance of this state, and pay to said superintendent for taxes, fines, penalties, certificates of authority, licenses, fees or otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such other state or government upon the companies of this state and the agents thereof. All insurance companies, partnerships and associations organized under any foreign government engaged in the transaction of the business of insurance in this state, as provided for in this act, shall annually, on or before the first day of March in each year, pay to the superintendent of insurance two per cent, on all premiums received in cash or otherwise by their attorneys or agents in this state, during the year ending on the preceding 31st of December; which sum shall be paid, in addition to the other license fees, into the state treasury for the insurance fund. In case of neglect or refusal by any company to pay said sum, the superintendent of insurance shall revoke the license or authority "granted such company.”
Its unconstitutionality is claimed upon two general propositions :
First, that its validity depends upon the legislation of some other state, and that it is therefore not in and of itself a complete expression of the legislative will. Thus, it makes the law of this state determined, not by what the legislature itself says, but by the varying enactments of other states. Second, it conflicts with the principle of equality of taxation required by §1, of article 11 of the state constitution.
Preliminarily to an inquiry as to the constitutionality of this section, we remark, first, that it is settled law, and now goes without saying, that an act of the legislature will not be declared unconstitutional unless it is clearly in conflict with the organic instrument. All doubts will be resolved in favor of the validity of the law. Second, that there is a manifest justice and fairness in the law. Corporations created by other states have no inherent right to enter into this state and transact business. Each state may determine for itself what corporations of other states may transact business within its borders, and upon what conditions they may so transact business. (Paul v. Virginia, 8 Wall. 168.) Now our insurance laws provide that insurance corporations of other states may enter into this state and transact business upon certain limited conditions, designed only to protect the citizens of this state against irresponsible and fraudulent organizations elsewhere. In other words, this state holds itself out to all other states of the Union as willing to meet them upon a basis of substantial freedom as to all insurance transactions. It couples, however, with this general extension of freedom, a provision that if any other state shall, by its la'ws, hamper and restrict the privileges of corporations created under our laws, in the transaction of insurance business within its borders, the same burdens and restrictions shall be imposed upon corporations of that state, seeking to transact business with us. This provision is called in insurance circles a “ retaliatory clause.” It seems to us more justly to be deemed a provision for reciprocity. It says, in effect, that while we welcome all insurance corporations of other states to the transaction of business within our limits, we insist upon a like welcome elsewhere, and that if other states shall attempt, directly or indirectly, to debar our corporations from the transaction of insurance business within their borders, we shall meet their corporations with the same restrictions and disability. It is, in brief, an appeal for comity; a demand for equality. As such, it is manifestly fair and just. It arouses no sense of injustice, and simply says to every other state'in the Union: “We will meet you on the basis of equality and comity, and will treat you as you treat us.”
With these preliminary observations' we pass to a consideration of the particular matters claimed to create an invalidity in the section. Much discussion has prevailed as to the question how far a law must be complete when it passes from legislative action. In Barto v. Himrod, 8 N. Y. 483, it. appeared that the legislature of New York passed an act establishing free schools, which provided that the electors should determine by ballot at the ensuing annual election whether such- act should become a law or not, and it was held that such act was unconstitutional and void. The reason given was, that by the constitution the legislature is made the sole depositary of legislative power; that it must of itself determine absolutely and finally whether any proposed measure shall or shall not become a law, and that it cannot delegate such determination to any other officer, tribunal, or body. This doctrine has been followed in many cases, and is invoked here to avoid the section in dispute. It is argued that our legislature did not finally and absolutely determine what burden, whether it be called a tax or a license, shall be imposed upon the plaintiff as a condition of doing business in this state, but has left the matter open to the determination of the legislature of the state of New York. This subject is discussed by Cooley in his Constitutional Limitations, pp. 117 and following, and the cases thereon cited in the notes. We do not deem it necessary to enter into a full discussion of the question, or determine whether, as to a similar statute the ruling in Barto v. Himrod should be followed. All that we deem necessary to decide is, that the legislature may constitutionally pass a law whose operation is made to depend upon some contingency, and that the contingency named in this section is not such as to vitiate it. ] This distinction is indicated by the court in its opinion in the case of Santo v. The State, 2 Iowa, 203, in these words:
“Now if the people are to say whether or not an act shall become a law, they become or are put in the place of the lawmaker. And here is the constitutional objection: their will is not a contingency upon which certain things are or are not to be done under the law, but it becomes the determining power whether such shall be the law or not.”
Now in this section is absolutely and finally prescribed the rule and measure of license. It is not left to the state superintendent to determine what the rule shall be. His duty is simply to ascertain the facts, and apply the rule. He may not arbitrarily determine upon what conditions the plaintiff may enter this state; he can only enforce the condition which the legislature has imposed. It is true the extent of those conditions may vary in different cases, but the rule to determine the variance is not left to his judgment, but is prescribed by the legislature. Our laws abound in cases in which a statute is made dependent upon the action of some tribunal or body, or upon some other contingency, and is therefore practically dormant until such action takes place or contingency happens. The laws authorizing municipalities to issue bonds are instances. They are almost universally made to depend upon the vote of the people of the municipality. And until and unless such vote is had, the law is practically dormant. Of a similar nature are the hedge-bounty laws, the herd laws, many of the statutes for the regulation of municipal governments, and others which might be named. This ■section, it is true, provides that in certain contingencies higher burdens may be imposed upon some foreign insurance companies than upon others, but it defines the contingencies and prescribes the rule for fixing such higher burdens.
But it is said that the contingency is the action of the legislature of a foreign state — that in effect the section attempts to transfer the law of such foreign state to our own, and make it operative within our territorial limits. Not so: the section is the law of Kansas, enforced solely within our limits, and in enforcing it the superintendent is only obeying the mandate of our legislature. True, the contingency is created by the action of a foreign state, and the section refers the superintendent to the legislation of that state to determine whether the contingency has arrived. But this is not the only instance in which our legislation refers to that of other states, and in a certain sense makes that legislation of force here. As is well said by the supreme court of Illinois in a recent case decided by it, a case which is exactly in point with this, and in which the conclusion of that court accords with our own — the case of The Home Insurance Company v. Swigert:
“Who has ever doubted the validity of that portion of-our statute which declares that deeds executed without the state may be acknowledged before anyone authorized to take such acknowledgments, by the laws of the state or country in which they are made? -Or who has ever questioned the constitutionality of that provision of our statute which makes all wills and testaments made in a. foreign state or country binding and valid here, if executed and proven agreeably to the laws and usages of such foreign state or country, although not in accordance with our general law on the subject? And yet, in either of these eases there is just as much reason for claiming that our legislature has abdicated its legislative functions, and attempted to delegate its constitutional and legitimate powers to a foreign state or country, as there is that it has done, or attempted to do so, in the present case.”
See also what is said by Chief Justice Redfield, in State v. Parker, 26 Vt. 357:
“One may find any number of cases in the legislation of congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of other countries. In some, perhaps, these laws are made by representative bodies, or it may be by the people of these states, and in oth ers by the lords of the treasury or the board of trade, or by the proclamation of the sovereign ; and in all. these cases no question can be made of the perfect legality of our acts of congress being made dependent upon such contingencies. It is in fact the only possible mode of meeting them, unless congress is kept constantly in session. The same is true of acts of congress by which power is vested in the president to levy troops, or draw money from the public treasury, upon the contingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate.”
In all these cases it is the law of the home government which is enforced, and the action of the foreign government only makes the contingency upon which the law becomes operative. There is no difference in principle between such contingency and any other which may be provided for in the statute. In all such cases it is the duty of the officer charged with the execution of the law to inquire as to the facts, and ascertain whether the contingency named has arrived, and if so to enforce the mandate of his superior, the legislature. We think, therefore, that the section is not obnoxious to the charge of unconstitutionality on this ground.
Neither can the other reason be sustained. It matters not whether this charge upon the plaintiff is to be regarded in the nature of taxation, or a license. In neither case is it justly obnoxious to the charge of inequality in the sense that would make it unconstitutional. The legislature may classify for the purposes of taxation or license, and when the classification is in its nature not arbitrary, but just and fair, there can be no constitutional objection to it. Thus, within the state municipalities are classified by population, and the authorized rate of taxation is, or may be, very different in each. Here foreign insurance corporations are classified by the states from which they come, and when we consider the purposes of such classification it cannot be held that there is anything arbitrary or unjust therein. But doubtless this charge is not to be considered as within the constitutional restrictions as to taxation, but rather in the nature of a license or condition of entering this state and transacting business within its limits; and as such its validity may be considered as settled by the case of the City of Leavenworth v. Booth, 15 Kas. 627. See in addition to the authority from Illinois, cited supra, the case of Goldsmith v. Home Ins. Co., 62 Ga. 379.
One other point remains to be considered. It is insisted that as no Kansas insurance corporation has applied for admission to the state of New York, the contingency named in the section has not arisen. This we think is a mistake. The contingency named is not that New York is in fact imposing the extra burdens upon one of our corporations, but that the laws of that state provide for such extra burdens. Whenever those laws require it, then the contingency named in our statute has arisen.
These are the only matters requiring notice, and in them appearing no error in the ruling of the district court, the judgment will be affirmed.
—It is understood that the case immediately succeeding this on the docket, No. 2766, involves only the same questions, and therefore the same judgment of affirmance will be entered in that case.
Valentine, J., concurring.
Horton, C. J., dissenting. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant in error, plaintiff below, brought his action against the defendant, to recover the sum of $45 as damages for the alleged wrongful taking and conversion of a sewing machine. The facts briefly stated are these: Plaintiff owned a Singer sewing machine, which he had bought in Kentucky and brought with him to this state. During his absence from home, the defendant, by one of its agents, carried off said Singer sewing machine and left in its place a Wheeler & Wilson sewing machine. The defendant claimed that this was done by virtue of a contract with the the wife of plaintiff, by which a new Wheeler & Wilson sewing machine was sold to her, and the old machine taken in part payment. As evidence of this, it introduced a written contract which was signed by plaintiff’s wife, she not being able to write, but making her mark thereto. On the other hand, plaintiff’s wife testified that the defendant simply took áway the Singer machine for the purpose of repair, and left the other machine with her for the purpose of trial; that she signed the written contract under representations of the agent that it was simply for a return of the machine after it had been repaired, and that she, being unable to read, relied on these representations. Judgment was rendered by the justice of the peace in favor of the plaintiff. An appeal was-taken to the district court, where after trial before a jury, judgment was again rendered in favor of plaintiff, and defendant now alleges error.
We think there is very little in this case save questions of fact, and upon those the verdict of the jury is conclusive. Noticing briefly the points made, it is insisted that the court erred in refusing three instructions asked by defendant. Part of the matters contained in these instructions was given by the court in its general charge, and the balance was properly refused because it is not good law. • It is not' true that the plaintiff’s wife, simply because she was his wife, had the right to sell or trade his property, although such property was a sewing machine kept in the house and used by her exclusively. Unless the machine was her property, either by gift or purchase, or she had authority from her husband, either express or implied, she had no right to sell or trade it. So far as the actual facts of the transaction between plaintiff’s wife and defendant’s agent are concerned, the testimony was conflicting, and there was enough to justify a verdict either way. The same may be said as to the value, of the old machine. While doubtless defendant’s witnesses showed themselves better informed, and therefore more qualified to testify as to values, yet a jury is not to be blamed if it places little credence upon the testimony of witnesses whom it believes guilty of such acts as the plaintiff’s witnesses charged upon the defendant’s.
Again, on the hearing of a motion for a new trial, the defendant offered in evidence some affidavits tending to show undue and improper influence on the jury. The court on the application of plaintiff continued the hearing of the motion for additional evidence, and thereafter several of the jurors were subpenaed and testified on the further hearing of the motion. The defendant insists that the court abused its discretion in ordering such continuance. We think not. The record fails to disclose what showing, if any, the plaintiff made for such continuance. Even if none was made, we think the court would be justified on its own motion and without any formal application on the part of either party, in postponing the hearing and directing further inquiry as to the charge of improper influences upon the jury. It is a matter which concerns not alone the parties but also the court and the public, that the administration of justice should be kept free from improper influ enees. And when such a charge is made the court owes it to itself and to the public to investigate the truth of the charge. Therefore, whether any showing was made for this continuance or not, we think the court committed no error in granting it.
One other matter requires notice. It is charged that the jury received testimony other than that given from the witness box. There were affidavits tending to show that John Sigwald, a witness in the case, conversed with some of the jurors outside the jury box in reference to the case. After an examination of the affidavits and other testimony, we are inclined to think that as to some of the alleged conversations the charge is not sustained. We think Mr. and Mrs. Clark must have been mistaken as to what they supposed they heard. As to the other conversations, it is doubtful at least whether they were directly addressed to a juror,.or whether what was said was in reply to a general inquiry by one of many persons. Be that as it may, the remark was simply a reflection on one of defendant’s witnesses, and the witness Sigwald himself was in the first instance called and examined by the defendant, though afterward called and examined by the plaintiff as to the character for truth and veracity of one of the other witnesses of the defendant. It may also be added that the juror testified that the remark of the witness Sigwald did not influence his conclusion as a juror. Taking all the testimony together, we do not think there is enough to justify us in overruling the decision of the trial court sustaining the verdict of the jury. .There being no other matter requiring notice, the judgment will be affirmed.
All the Justices Concurring. | [
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The opinion of the court was delivered by
Hckrton, C. J.:
The writer of this is of the opinion that after the agreed statement of facts had been signed and filed by the parties it embraced all facts in issue, and that the sole question below was a question of law; and that was, whether on the agreed facts the law attached negligence to the railroad company. A majority of the court, however, differ from this conclusion, and are of the opinion that, as there was no agreement to submit the case to the court below upon the agreed statement of facts, and as the plaintiff below never understood he was relieving the railroad company of the imputation of negligence, in signing the agreed statement, and as the second paragraph of the agreed statement is of doubtful interpretation, and as the district court interpreted it as not establishing the precise manner in which the animal was killed, and therefore permitted evidence to be introduced to show this fact and the negligence of the company connected therewith, the only error committed was in taking the railroad company at a disadvantage under its view of the conclusiveness of the agreed statement of facts. With the interpretar tion entertained of this agreed statement by the counsel of the company, it was seemingly unprepared to disprove the evidence introduced; therefore a new trial should be granted.
The majority of the court do not fully agree in the reasons for the conclusions, but as the members constituting the majority are of the opinion that upon a new trial the court below may rightfully permit the introduction of evidence upon the issue of negligence of the railroad company, it is unnecessary to set forth their individual views in the premises.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Nettie V.. Hamilton against the city of Osborne, for damages alleged to have been caused by reason of a defective sidewalk. The defendant demurred to the plaintiff’s petition, which demurrer the court overruled. In this we do not think that the court below committed any error; but if it did, the defendant did not except to the ruling of the court. The defendant then answered, and the plaintiff replied; and upon these pleadings, (the petition, answer and reply,) the case was tried by the court and a jury; and on January 27, 1882, the jury found a general verdict in favor of the plaintiff and against the defendant, assessing the plaintiff’s damages at $470; and, also, at the same time made special findings of fact. The defendant then moved for judgment in its favor upon the special findings of the jury, and on February 4, 1.882, this motion was overruled. The court below certainly did not err in overruling this motion, for besides the general verdict in favor of the plaintiff and against the defendant, the special findings would also seem to indicate that the plaintiff should recover in the action. The special findings clearly show that the plaintiff was injured; that the sidewalk was defective ; that the officers of the city had knowledge of the defect, and that they were negligent in not putting the sidewalk in good condition. And the special findings also tend to show that the plaintiff exercised reasonable care and diligence on her part. They show that she had no knowledge of the defect prior to the injury, and that she exercised reasonable care and diligence at the time of the injury. One of the special findings is as follows:
“ Question: Did the plaintiff exercise ordinary care and prudence to guard against an accident at the time at which she is alleged to have fallen? Answer: Yes.”
There is one special finding, however, that has a tendency to show that the plaintiff did not exercise proper care and diligence. That special finding reads as follows:
“Q,. Was plaintiff in a position at the time of the accident that she could have knowledge of the alleged defect by exercising ordinary care and prudence? A. Yes.”
From all the findings, we may infer that the plaintiff did not have any actual knowledge of the defective sidewalk, until she reached the same; and then, by the exercise of ordinary care and prudence, she could have seen the same; and we may even conclude that she did in fact see the same, and have knowledge of the same. But, taking the other findings into consideration, we must presume that, although she then had actual knowledge of the defective sidewalk, she exercised reasonable and ordinary care and prudence to avoid injury from the same; but that in passing over it, she fell and was injured. In whatever light, however, we may view this one special finding last above quoted, we think we would still be required to hold that the whole of the special findings taken together, would not have required or even authorized a judgment in favor of the defendant below.
Immediately after the overruling of the defendant’s motion for judgment upon the special findings of the jury, and on February 4, 1882, whicii was eight days after the verdict of the jury was rendered, and after their special findings were made, the defendant filed a motion for a new trial. This motion was founded upon errors and irregularities occurring at and during the trial; and no reason was given why the motion was not filed within three days after the rendering of the verdict of the jury, as required by §308 of the civil code. The plaintiff in error, defendant below, now says that the reason was, that the defendant did not wish to file its motion for a new trial until its motion for judgment upon the special findings of the jury had been disposed of; and, that such motion for judgment was not disposed of until February 4, 1882; and that the motion for the new trial was filed immediately afterward, and on the same day. We do not think that this is a sufficient reason. We think the motion was filed too late, and is in effect a nullity. (Hover v. Tenney, 27 Kas. 133, and cases there cited. See also the cases following, cited in the brief of defendant in error: Odell v. Sargent, 3 Kas. 80; Mitchell v. Milhoan, 11 id. 617; Nesbit v. Hines, 17 id. 316; Fowler v. Young, 19 id. 150; Lucas v. Sturr, 21 id. 480; City of Atchison v. Byrnes, 22 id. 65; Kerner v. Petigo, 25 id. 652.)
The court below rendered judgment in favor of the plaintiff and against the defendant, upon the general verdict and special findings of the jury, for the sum of $170 and costs. We perceive uo error in this;- and therefore the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The demurrer in this case to the petition must be overruled. Under the allegations in the petition the election in April, 1882, was the proper time for the election of a justice of the peace in Clay Center, to succeed defendant. At said election, the defendant was a candidate for the office as his own successor. The plaintiff was also a candidate to succeed him; at the election, plaintiff received one hundred and fifty-one votes as the successor of defendant, and defendant received sixty only. After the election, the returns were duly canvassed, and plaintiff declared elected to the office of justice of the peace as the successor of the defendant for the term of two years, from the date of the election in April, 1882, to April, 1884. Thereafter a certificate of his elei^tion was duly issued and delivered to him, and he duly qualified and made demand of the defendant for the books, records and papers of the office.
The failure to elect two justices of the peace would not invalidate the election of plaintiff. (Frazer v. Miller, 12 Kas. 459.) Therefore the failure to elect a successor to the other justice, one Loofborrow, cannot figure in this controversy. Under the allegations of the petition, the electors of Clay Center, at the election in April, 1882, chose to elect only one justice of the peace — that justice to succeed the defendant. The majority of the electors voted for the plaintiff, and we perceive no good reason why the clearly expressed will of the voters should not be carried out. (Wood v. Bartling, 16 Kas. 109.)
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action .on a criminal recognizance. . The recognizance, with the indorsement thereon, reads as follows:
Eefore' Geo. M. Everline, Justice of the Peace of Monroe Township, Anderson County, Kansas. — The State of Kansas, Plaintiff, v. Philip Masterson, Defendant. — Whereas, the above-entitled action is this 29th day of July, 1881, continued to the 6th day of August, 1881, now, therefore, I, the undersigned, bind myself to' the state of Kansas in the sum of three hundred dollars for the appearance of said Philip Mas terson, defendant, before the above-named justice of the peace, "on said last-named date, at 9 o’clock A. M., for examination in said cause. Wm. S. Tillson.
Approved by me, this 29th day of July, 1881.
Geo. M. Everline, J. P. _
[Indorsed:] Affidavit of Sureties. — State of Kansas, Anderson County, ss. — I, the undersigned surety on the annexed undertaking, do solemnly swear that I am a resident of said county and state of Kansas; that I am worth three hundred dollars over and above all exemptions, debts and liabilities. So help me God. Wm. S. Tillson.
Subscribed and sworn to before me, this 29th day of July, 1881. Geo. M. Everline, J. P.
State of Kansas v. Philip Masterson. Recognizance and adjournment. Assault with intent to commit rape. Filed July 29, 1881.— Geo. M. Everline, J. P.
The complaint in the action in which this recognizance wasi given reads as follows:
Before Geo. M. Everline, a Justice of the Peace in and for the County of Anderson, in the State of Kansas. — The State of Kansas, Plaintiff, v. Philip Masterson, Defendant.— Complaint for an Assault with Intent to Commit Rape. — The State of Kansas, County of Anderson, ss. — J. N. Cline, being first duly sworn, deposes and says, that on the 10th day of July, 1881, at and in the county of Anderson and state of Kansas, Philip Masterson did then and there unlawfully, willfully and feloniously make an assault upon one Ruth Cline, then and there being, with intent, her, the said Ruth Cline, violently, forcibly, and against her will, then and there unlawfully and feloniously to ravish and carnally know; and deponent prays that process may be issued against the said Philip Masterson, and that he be dealt with according to law. ' J. N. Cline.
Sworn to and subscribed ^before me, this 29th day of July, 1881. Geo. M. Everline, J.. P.
[Indorsed:] Complaint. — State of Kansas v. Philip Masterson. Assault with, intent to commit rape. Filed July 29,1881. — Geo. M. Everline, J. P.
A trial was had in the case, in the district court, before the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, now brings the case to; this court. In the court below, everything was alleged in the petition and proved on the trial that was necessary to be alleged or proved in order to make out a good case in favor of the plaintiff and against the defendant; provided, the recognizance and the complaint above quoted are valid and sufficient. The petition and evidence showed that said complaint was made and filed; that a warrant was issued for the defendant; that he was arrested; that he was in legal custody; that the case was continued by Justice Everline, with the consent of the defendant; that the recognizance was then given for the purpose that he might be discharged from such custody; that by reason thereof he was so discharged; that he afterward committed a breach of the recognizance by failing to appear before the justice of the peace at the appointed time, according to the condition of the recognizance; and that the justice made a proper entry of the default, and duly certified the recognizance with the record of such default to the district court."
The plaintiff in error claims that the complaint above quoted, and all the proceedings following, are void, for the reason that neither the complaint nor any of the proceedings show that Ruth Cline was a “ female child or woman; ” that from anything appearing in the case, Ruth Cline may have been an “animal,” or an “inanimate object, personified.” We this claim is untenable. It must be pregumed from the name, “Ruth Cline,” and from the use of the personal pronoun “ her,” and from the allegations in the complaint, that Ruth Cline was a female person upon whom the offense of assault with the intent to commit rape could be .committed. (State v. Farmer, 4 Ired. 224; State v. Hussey, 7 Iowa, 409; Taylor v. The Commonwealth, 20 Graft. 825.)
We think that riot only the complaint, but also the allegations of the petition and the evidence upon this point, were amply sufficient.
The plaintiff in error also claims that the recognizance is void for the following reasons: First, that the same was not executed by Masterson, the accused; second, that the recognizance itself does not show that Masterson was charged with the commission of any offense. This recognizance was given under §45 of the criminal code, which reads as follows:
“Sec. 45. Any magistrate may adjourn an examination or trial pending before himself, from time to time, as occasion shall require, not exceeding ten days at one time, without the consent of the defendant of person charged, and to the same or different place in the county, as he shall think proper -f and in such case, if the party be charged with a capital offense, he shall be committed in the meantime • otherwise he may be recognized in a sum, with sureties to the satisfaction of the magistrate, for his appearance for such further examination ; and for want of such recognizance, he shall be committed.”
The other sections of the criminal code necessary for a correct understanding of the last two • points raised by counsel read as follows:
“Sec. 136. All recognizances required, or authorized to be taken, in any criminal proceeding, or in any proceeding of a similar nature, shall be in writing, and shall be subscribed by the parties to be bound thereby.
“Sec. 153. The prosecuting attorney may, at any time after the adjournment of the court, proceed by action against the bail upon the recognizance. Said action shall be governed by the rules of civil pleading, as far as applicable.
“ Sec. 154. No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or magistrate to note or record the default of any principal or surety at the term or time when such default shall happen, or of any other irregularity, so that it may be made to appear that the defendant was legally in custody, charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained, from the recognizance, that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.”
The point that the recognizance is void because the accused did not sign the same, we think is not tenable. At common law it was never necessary for any person to sign the recognizance ; and under the statutes it is necessary only 7 % j j for those to sign the recognizance who are to be bound thereby; and it is never necessary under the statutes for the accused to sign the recognizance, unless the statutes absolutely require the same to be done. (Ingram v. The State, 10 Kas. 630.)
The recognizance in the case last cited was given under § 54 of the criminal code, instead of under § 45 of the criminal code, as the present recognizance was; hence that case is not quite applicable to the present case. (See also Gay v. The State, 7 Kas. 394, 402.) Of course the recognizance is binding upon only those who sign the same. (Cr. Code, § 136.) But it is is binding upon all who sign the same, and binding in severalty and not merely jointly. (Swerdsfeger v. The State, 21 Kas. 475.) In this state every recognizance is several as well as joint, and any one or more of the persons who sign the same may be sued for a breach thereof. Even where the accused signs the recognizance, as well as the surety, the surety alone may be sued without joining his principal with him. (See case last cited.) Of course, under §45 of the criminal code, it would be very proper for the accused as well as the surety to sign the recognizance ; and possibly it would be the duty of the magistrate in all cases to require him to do so; but his failing to do so we do not think will render the recognizance void as against the surety.
The point that the recognizance does not show that Masterson, the accused, was charged with the commission of any offense, we also think is untenable. It never was . . . , . , , M necessary m a criminal recognizance to describe ^ 0 the offense in detail, or to state facts in detail sufficient to show that a public offense was committed. (State v. Randolph, 22 Mo. 474; State v. Rye, 9 Yerg. 386.) All that was ever necessary was, that the recognizance should either state or show that the defendant was charged with the commission of a public offense; and in any case if it was desired to know the exact nature and character of the offense, the parties so desiring were required to examine the other proceedings in the case. (See authorities above cited, and Gay v. The State, 7 Kas. 394, 404.) The recognizance is an obligation of record, and wherever it is obscure or indefinite, other portions of the record may be examÍDled for the purpose of making its meaning clear and explicit. The plaintiff in error founds his argument upon this point principally, if not entirely, upon the language of §154 of the criminal code, which says that no recognizance shall be held to be insufficient if it be made to appear among other things that the defendant was “ in custody, charged with a public offense, .. . . and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.” The words “such offense” above quoted simply mean “public offense,” and refer back to these words as previously used; and the section does not mean that the offense shall be set out in detail,-but simply that a statement shall be made or words inserted, showing that the defendant was charged with the commission of some public offense. We think the recognizance in the present case shows this, although it shows the same only indefinitely, obscurely, and inferen daily. The recognizance is entitled “The State of Kansas, Plaintiff, v. Philip Masterson, Defendant.” It shows that the case was pending before George M. Ever line, a justice of the peace of Monroe township, Anderson county, Kansas; and it shows that the plaintiff in error bound himself to the state of Kansas for the appearance of Masterson before the said justice for an examination in the case. Now can the above description apply to any case except a criminal case? Can it apply to any case except a case where a public offense has been intended to be charged ? We would think not. Besides, the recognizance was indorsed with the following among other words: “Assault with intent to commit rape; ” and the plaintiff in error must have seen this indorsement, for his affidavit and signature thereto were also indorsed on the recognizance. Also the other proceedings in the case, had prior to the execution of this recognizance, show explicitly and definitely the exact nature and character of the offense charged against the accused.
We think the recognizance is to some extent defective in not stating clearly and explicitly upon its face, that the public offense with which the accused was charged was an “ assault with intent to commit rape;” but still we do not think that the recognizance is so fatally defective as to be utterly null and void. There is no pretense that any other suit against Masterson was pending before Justice Everline than the one in. which this recognizance was given; nor is there any pretense that the plaintiff in error ever expected Masterson to join with him in the execution of the instrument. From anything appearing in the case, the plaintiff in error knew, exactly what he was doing when he executed the instrument. He knew its full contents, and its scope and purpose, and that he was to be the only party to execute the. same; hence there is no good reason for holding it to be void, unless it cannot in law be held to be otherwise than void-. Of course, recognizances must always be construed- strictly and rigidly so as not to enlarge the recognizor’s intended liability, so as not to include anything beyond the reasonable scope and intent of the express terms of the recognizances, nor anything not contemplated by the parties or intended by them. But still, recognizances can never be declared void unless they are clearly and manifestly void, or by a fair interpretation of their contents and their surroundings they are shown' to be void. It is never presumed that parties deliberately intend to execute void instruments; but the presumptions are always the other way. Courts always attempt to give force and effect to the deliberate acts and deliberate contracts of parties, where such acts and contracts are not in violation of any law, nor in contravention of public policy or good morals. And all reasonable presumptions and all reasonable interpretations may be resorted to for the purpose of upholding instruments which the parties, with a full knowledge of all the facts, have deliberately and intentionally executed;
- The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
'Valentine, J.:
The plaintiff in error commenced this action before a justice of the peace, by filing a bill of particulars, in which he alleged that the defendants owned a bull, which they permitted to run at large; that plaintiff owned a mare; that the bull, while permitted to run at large, gored the mare so that she died; and claiming judgment for the value of the mare. The case, after judgment in the justice’s court, was appealed to the district court, where a trial was had, before the court and a jury.
The evidence adduced on the trial, showed that the ownership of the bull and the mare was just as it was alleged to be in the plaintiff’s bill of particulars; that the bull had been feeding in the pasture of plaintiff, with his assent, for about one month previous to the injury to the mare, which occurred on May 19, 1882; that on the evening when the mare was injured, the plaintiff’s son, Niles, acting as the servant of his father, went to plaintiff’s pasture, opened the bars and let out plaintiff’s cattle, and with them defendants’ bull; that he drove them all together toward the cow-lot of the plaintiff, near his house; that while in the road, passing from the pasture to the cow-lot, he met the mare, which had come out from the stable and was going toward the pasture; that he, Niles, turned the mare back, and that the plaintiff’s cattle, the defendants’ bull, and the mare, all went into the cow-lot together, and that Niles then shut up the bars, thus shutting them all in together; that the lot was five rods square, surrounded by a tolerably good post-and-board fence, about five feet high; that while in the lot, and in fifteen or twenty minutes after they were shut in, the mare was injured; that no one saw how it was done.
A demurrer to the evidence was interposed by the defendants and sustained by the court, to which ruling the plaintiff excepted. The plaintiff then moved for a new trial, which motion was overruled by the court, and the plaintiff again excepted. Judgment was then rendered in favor of the defendants and against the plaintiff for costs, to all of which the plaintiff excepted. These rulings of the court below are now assigned for error.
We cannot say that the court below committed error. The plaintiff did not prove any cause of action against the defendants. It was not the fault of the defendants that the plaintiff’s mare was injured. The defendants had nothing to do with placing the bull in the plaintiff’s cow-lot; neither had they anything to do with turning the plaintiff’s mare into the cow-lot with the bull, or with shutting them all in together. If the bull in fact gored the mare, (and it is fair to infer that he did, although there is no direct evidencé of such fact,) such goring was rendered possible by the act of the plaintiff’s son in inclosing all these animals together in a close lot. If the animals had been kept apart from each other the mare could not have been injured. The plaintiff’s son acted as the agent and servant of the plaintiff, and not as the agent or servant of the defendants, in performing all these acts. It is probably true that the defendants’ bull was -at one time illegally running at large, but he had not been illegally running at large for about one month previous 'to the injury to the plaintiff’s mare. But even if he had been illegally running at large the day before the injury to the mare, or even on the same day,1 it could hardly be said that such running at large was the cause of the injury to the plaintiff’s mare while she, with the bull and the other cattle, was inclosed in the plaintiff’s own cow-lot. It cannot be said that the defendants’ bull was running at large while he was confined in the plaintiff’s pasture; nor was he running at large while he was on the road in charge of the plaintiff’s son, passing from the plaintiff’s pasture to the plaintiff’s cow- lot; and he certainly was not running at large while he was confined in the plaintiff’s cow-lot, a lot only five rods square. The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action brought by Joseph Brown, as administrator of the estate of William Haas, deceased, against the Atchison, Topeka & Santa Fé railroad company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of said Haas. A trial was had at the March term, 1882, of the district court of Lyon county, before the court and a jury, which resulted in a verdict in favor of the plaintiff and against the defendant, for the sum of $7,000 damages. Special findings were also made by the jury. The defendant immediately filed a motion to set aside the verdict and findings, and for a new trial, setting forth in its motion eighteen grounds for the order prayed for. The district court sustained the motion, upon the following of such grounds, to wit:
“4. Irregularity on the part of the jury in arriving ht their verdict, by which the defendant was prevénted from obtaining a fair and impartial verdict in said cause.”
“8. Misconduct of the jury.”
“Í1. Excessive damages, appearing to have been given under the influence of passion.
“12. Excessive damages, appearing to have been given under the influence of prejudice.
“13. Error in the assessment of the amount of recovery awarded in this case, in that in any view of the case, under the answers returned to the special findings of fact, the amount of plaintiff’s recovery ought not to have exceeded the amount of $4,300, if the jury had the right under the evidence and findings to have awarded any amount.”
- "16. That the verdict is not sustained by sufficient evidence,'and is contrary to law.”
“18. Errors of law occurring at the trial, and duly excepted to at the time by the defendant.”
Within the eighteenth ground • for the new trial are included a large number of alleged errors, as follows: First, the permission by the court to the plaintiff to read in evidence the deposition of Robert Hitchcock; second, the refusal by the court to permit the defendant to cross-examine the witness C. C. Ferrin touching his qualifications to testify as a railroad expert before giving his opinion in relation to the proper and usual manner of loading long timbers upon flat cars, and in refusing to withdraw the testimony of this witness from the jury when requested so to do by the defendant after the cross-examination had developed the fact that the witness was not qualified as an expert to give an opinion upon this subject; third, the giving by the court to the jury of four certain instructions, to wit, the 3d, 5th, 6th and 8th; fourth, the refusal by the court to give to the jury nine certain instructions asked by the defendant, to wit, the 1st, 4th, 6th, 8th, 12th, 15th, 18th, 29th, and 31st.
The plaintiff, without accepting the new trial granted on the motion of the defendant, has brought the case to this court, and asks for a reversal of the order of the district court granting the new trial. The plaintiff insists vehemently that the order of the court below granting the new trial should be reversed because thirty-six jurors have found verdicts in favor of the plaintiff and against the defendant, and because “there have been three concurring verdicts for the plaintiff” in this casé. A'concurrence of three separate juries should undoubtedly, upon all mere questions of fact, have great weight; and where three separate juries have agreed upon any particular fact, a court should hesitate long before deciding that all these juries have erred with respect to such particular fact. But we hardly think that such a question as this enters into this case; for, first, three separate juries have not concurred in all the questions of fact upon which the court below set aside the verdict and granted the new trial. The first jury decided that the plaintiff’s damages were only $500, while the last jury decided that his damages were $7,000; and the court bólow set aside the verdict and granted the new trial, among other things, upon the ground that the verdict was excessive. Second, the verdict of the jury was also set aside and the new trial granted upon the ground'of misconduct of the jury; and third, the court set aside the verdict and granted the new trial upon the ground of various errors of law occurring at the trial, and duly excepted to by the defendant.
Now we think it will not be claimed that the first two of these three juries concurred in the misconduct of the last; nor will it be claimed that the first two juries concurred with the last in the errors of law committed by the court during the trial; and hence it cannot at all be claimed that there was a concurrence of three separate juries concerning the matters for which the new trial was granted. But suppose that it could be so claimed, still, notwithstanding such supposed concurrence, the setting aside of the verdict and the granting of the new trial might nevertheless be perfectly right; for under our statutes a verdict may be set aside and a new trial granted as often and as many times as there are any sufficient grounds therefor. We think the new trial in this ease was properly granted, and that the plaintiff should rely upon procuring another verdict before another jury if he is entitled to any verdict in his favor, and that he should obtain such verdict without any misconduct on the part of any person, and without any substantial irregularity, and without any substantial error on the part of either the court or the jury.
- We do not think it is necessary to discuss any of the questions involved in this case, in detail. Some of them have already been discussed by this court, when the case was formerly here, (Atchison, Topeka & Santa Fé Railroad Company v. Brown, 26 Kas. 443;) and we shall further discuss them when‘a final judgment is rendered in the case, and when the case is again brought to this court, if it ever shall be.
Upon the question of reviewing orders of the district court grantiug new trials, we would refer to the following decisions: Field v. Kinnear, 5 Kas. 233, 238, and cases there cited ; Ryan v. Topeka Bridge Co., 7 Kas. 207; Owen v. Owen, 9 Kas. 91; City of Ottawa v. Washabaugh, 11 Kas. 124; Atyeo v. Kelsey, 13 Kas. 212, 216; McCrum v. Corby, 15 Kas. 112; Bedell v. National Bank, 16 Kas. 130; Barrett v. Barnes, 17 Kas. 266; Condell v. Savings Bank, 23 Kas. 596; Eagle Chair Co. v. Kelsey id. 632; Howell v. Pugh, 25 Kas. 97; Hunt v. Haines, id. 210.
The order of the court below, setting aside the verdict of the jury, and granting a new trial, will be affirmed. . | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under the prohibition act of 1881. The case was commenced originally by the county attorney of Cherokee county directly in the district court, by filing an information containing five counts,, in four of which counts the defendant was charged with selling spirituous, malt, vinous, fermented and other intoxicating liquors, without having a permit therefor from the probate judge of said county; and in the fifth count he was charged with selling the liquors prohibited by the statute for other than mechanical, medical and scientific purposes.
The fifth count reads as follows:
“V. And the county attorney further informs the court, and avers that one A. J. Hunt, then and there in a certain frame building, on lot No. 8, in block No. 27, of the original plat of the city of Columbus, in the county of Cherokee and state of Kansas, on the 10th of November, 1881, and at divers times before that date, did willfully and knowingly and unlawfully sell, barter and give away spirituous, malt, vinous, fermented and other intoxicating liquors, for other purposes than for medical, mechanical and scientific purposes; contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”
The case was tried before the court and a jury, and the jury found a verdict against the defendant upon all the counts of the information, and judgment was rendered accordingly. The defendant now appeals from that judgment. The defendant raises two questions, and two questions only, which are stated in his counsel’s brief as follows:
“First, That in the light of the testimony, the defendant could not be convicted under the first four counts of the information, or either of them; and, seeond, that the fifth count does not state a public offense.”
The defendant moved for a new trial, and filed other motions, and took exceptions, so as to properly raise these questions in the court below. We shall consider these questions in their order.
I. The records of the probate judge of Cherokee county show that C. A. Hunt filed the necessary petition, bond, etc., under § 2 of the prohibition act of 1881, for the purpose of obtaining a druggists’ permit to sell intoxicating liquors in accordance with the said act, and that she obtained such permit, and had the same at the time it is charged that the liquors in the present case were sold, and that she still had the same at the time of the trial in this case. The defendant in the present case, A. J. Hunt, testified on the trial that the C., A. Hunt to whom the said permit was issued was his wife; that she was the owner of the drug store in which said liquors were sold, and that she carried on the drug business in the building described in the information; and that he, the defendant, \yas doing business for her at that place, and for her benefit, and as her head clerk or manager; or, in other words, that she was the absolute owner of the stock and business, and that he was simply her clerk and managing agent. This evidence was uncontradicted. The question, then, presented under the first four counts of the' information, is simply this: Can a person who, as a clerk or managing agent, and who does not himself have a permit to sell intoxicating liquors, but who sells the same in a drug store, as the clerk or managing agent of a druggist who does own the drug store, and who has a permit to sell intoxicating liquors therein, be prosecuted and convicted for selling intoxicating liquors in such drug store without having a druggists’ permit therefor? This question we think must be answered in the negative; Where a druggist has a permit to sell intoxicating liquors, all his clerks and agents may sell the same in his drug store without violating the law; and this must be true, although the clerk or agent selling the liquor might be a general agent or general manager of the druggist for his whole drug business.
The counsel for the state cites a number of authorities upon this question, but we do not think that any of them have application to the present case. They simply go to the extent of holding that where a person acts as the clerk or the agent of another in selling intoxicating liquors for him in violation of law, and where neither the clerk nor the proprietor has any license authorizing such sale, that both, or either of them, may be prosecuted and punished for violating the law. This is undoubtedly the law; but it has no application to the case which we are now considering. Every person who aids, assists or abets in the commission of an offense, whether present or absent, whether as principal or proprietor, or general manager, or agent, or clerk, or servant, is liable to be prosecuted and convicted and punished for such offense. Nothing but innocence will excuse a supposed offender.
II. The second question has already been decided in this court, in the case of The State v. Shackle, ante, p. 341. The fifth count under the decision already made, states an offense, and under the evidence introduced in this case, the defendant was unquestionably guilty; and as he sold the liquors as the agent or general manager of his wife, his wife was also guilty, provided of course that she authorized the sales to be made as they were made, and for the purposes for which they were made; but so far as we are informed, she has not yet been prosecuted for the offense.
The judgment of the court below upon the first four counts of the information will be reversed, and a-new trial ordered; and upon the fifth count of the information the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
The petition alleges substantially that the defendant in error (plaintiff below) was employed as a brakeman and yardman by the railway company to work at Armstrong, in this state, and while engaged in attempting to couple two cars together, on the 23d day of August, 1879, was, without his fault, injured through the negligence of one of the engineers of defendant below, in carelessly and recklessly shoving and pushing a car against him, whereby one of his hands was caught between two cars, and greatly injured and mangled. Although the petition alleges that the engineer was incompetent, and that the company employed him without due caution, yet no evidence was offered in support of these latter allegations, and the case went to the jury solely upon the supposition that a liability had been incurred under the statute. (Laws 1874, ch. 93.) The railway company set up in its answer, among other defenses, a contract, containing a waiver and release fully covering all liabilities imposed by the statute. To this defense plaintiff filed his demurrer, alleging the contract was contrary to law, against public policy, and void. This-demurrer was sustained by the court, and ■we are confronted at the threshold of the case with the question of the validity of this special contract. Prior to the statute of 1874, the rule of the common law prevailed in this state, that a master was not liable to his servant for an injury happening in consequence of the negligence of a fellow-servant engaged in the same general employment, unless charged with some degree of fault or negligence in the selection or retention of the fellow-servant. The legislature of the state has, however, changed the common-law rule, and the statute makes a railroad corporation liable for the negligence of one employé causing injury to a eo-employé,- without regard to the negligence of the company in selecting or retaining the employé. Whether this legislation be wise, or not, it is not within our province to determine. We must assume that the legislature had satisfactory reasons for changing the rule of the common law, and having adopted the statute, as we may assume for wise and beneficial purposes, we do not think a railroad company can contract in advance for the release of the statute liability. It is a familiar principle of law that a contract made in violation of the statute is void, and also that agreements contrary to the policy of statutes are equally void. There are exceptions: thus, it is no part of the policy of the law to encourage frauds, by releasing the fraudulent party from the obligation of his contract, and so a party shall not set up his own illegality or wrong to the prejudice of an innocent person. (Bemis v. Becker, 1 Kas. 226.) Again, he who prevents a thing being done, shall not recover damages resulting from the non-performance he has occasioned. The plaintiff below is not within these or other exceptions, and therefore the ruling of the district court upon the demurrer must be sustained. Further, while the reasons for the rule of the common law) that the master ought not to be responsible for injuries inflicted upon one servant by the negligence of another servant in the same com-' mon employment, seem plausible and correct theoretically, yet we may assume that the legislature did not find the practical operations of the rule as affording sufficient security to persons engaged in the hazardous business of operating railroads ; that for the protection, of the lives and limbs of the employés of such companies,-the legislature deemed it necessary to enact the statute making these companies liable for all damages done to any of their employés in consequence of the negligence of a co-employé. Now if the statute was enacted for the better protection of the life and limb of railroad employés, it would be against public policy for the courts to sanction contracts made in advance for the release of this liability, especially when we consider the unequal situation of the laborer and his employer. Take this illustration: In some states — and in our own — the. owners of coal mines which are worked by means of shafts, are required to make and construct escapement shafts in each mine, for distinct means of ingress and egress for all persons employed or permitted to work in the mines. Such a statute is for the benefit of employés engaged in working in coal- mines; but the owner of such a mine would not be permitted to contract in advance with employés for operation of the mine in contravention of the provisions of the statute. The state has such ah interest in the lives and limbs of its citizens, that it has the power to enact statutes for their protection, and th9 provisions of such statutes are not to be evaded or waived by contracts in contravention therewith-. The general principle deduced from the authorities is, that an individual shall not be assisted by the law in enforcing a contract founded upon a breach or violation on his part of its principles or enactments; and this principle is applicable to legislative enactments, and is uniformly true in regard to all statutes made to carry out- measures of general policy; and the rule-holds equally good, if there be no express provision in the statute peremptorily declaring all contracts, in violation of its provisions void, in regard to. statutes intended generally to protect .the public interests, or to vindicate public morals. (Sedgwick on Constr. of Stat. and Const. Law, 2 ed., 337, 338.) With our interpretation of the statute of 1874, and the fairly-inferred intent of the legislature in enacting it, the omission therefrom of the addition in the Iowa statute, “and no contract which restricts such liability shall be legal or binding,” does not empower a railroad company to evade its liability by contract.
Counsel refer to Rld. Co. v. Petty, 25 Ind. 413, permitting a land-Owner to waive by contract a liability imposed by statute upon a railroad company for injuring animals unless its road is securely fenced. That decision may rest upon the well-known maxim that “He who prevents a thing being done, shall not recover damages resulting from the non-performance he has occasioned.” Clearly, where the owner of land through which a railroad passes, has undertaken with the company to inclose the road with a lawful fence, he ought not to recover from the company damages for an injury to his stock which results wholly from his failure to perform his contract.
Upon the trial, plaintiff below was asked by his counsel the following question:
Q. “Now I will ask you again, Mr. Peavey, judging from your experience, would you have been injured upon that occasion, if that car had approached you at the usual and proper rate of speed for making couplings?”
The question was objected to by the railway company, but the objection was overruled, and the answer was given:
A. “I don’t think I would.”
Another witness, Meyers, was asked by the same counsel the following:
Q. “I will ask you to state whether or not it is a fact that brakemen in making couplings of that kind are or are not compelled to rely to a great extent upon the prudence of the party handling the engine?”
Like objections were made, and overruled. The answer was:
A. “Yes, sir; they are.”
The objections to the questions cited ought to have been sustained, as it is a general rule that opinion is inadmissible on questions which can be decided by the jury ^ fac(-,s_ ^ brakeman brought an action for injuries received in coupling the engine of the train he was engaged in operating to a car laden with timber. A witness, who was a railroad agent, and had been two years a brakeman, was asked this question: “What is the proper way to couple cars when timber projects?” The court sustained an objection to the question, and refused to permit the witness to answer. (Hamilton v. Rld. Co., 36 Iowa, 31.)
A brakeman while attempting to couple two loaded freight cars to the mail car, was crushed by the bumper of the mail car overriding that of the freight car and permitting the platform to come in contact, of which injury he died. On the trial to recover damages, the depositions of various witnesses who had been brakemen, baggage masters, and conductors lipón railroads, were read in evidence, giving their opinions that if the drawheads or bumpers had been properly matched there would have been no danger of one overriding the other, and that if the drawheads had been properly matched there would have been no danger of the person being crushed between the cars in making a coupling. The matters referred to in the depositions were held not proper subject of opinion. (Muldowney v. Railway Co., 36 Iowa, 462.)
A brakeman brought an action for injuries received while coupling cars. The opinions of experts that he was careless in the matter of doing the work were deemed inadmissible. (Hopkins v. Rld. Co., 78 Ill. 32.)
In an action for injuries sustained while attempting to oil a part of the machinery of a steam engine, an expert engineer was asked if he thought that the plaintiff in oiling that part could have been injured unless he was careless. This was held improper. (Buxton v. Somerset Potters’ Works, 121 Mass. 446; Bixby v. Rld. Co., 49 Vt. 127; Hill v. Rld. Co., 55 Me. 438; Coons v. Railway Co., 65 Mo. 592; 2 Thompson on Negligence, 799; Monroe v. Lattin, 25 Kas. 351; City of Parsons v. Lindsay, 26 Kas. 426.)
“The experience of courts with the testimony of experts has not been such as to impress them with the conviction that the scope of such proof should be extended. Such testimony is not admissible in any case when the jury can get along without it, and is only admitted from necessity, and then only when it is likely to be of some value.” (Morrigan’s Appeal? 29 Mich. 5.)
The matters upon which the opinions were giveri in the evidence objected to, were on questions which could have been decided by the jury on the facts; and of the facts, after a full hearing thereof, they were the competent judges.
Counsel for plaintiff below suggest that even if the questions asked were incompetent, the error was immaterial. As to the second question, we might assent; but we think differently of the opinion of the injured party. His evidence was likely to have exercised gre'at influence. At least in a close case like this, it must have been productive of some effect.
Among other instructions given is the following:
“If the jury believe from the evidence that the engineer’s conduct was the proximate cause of the injury complained of, that the plaintiff’s conduct was the remote cause of injury, then the plaintiff ought to recover. But if the jury believe from the evidence that the conduct of the engineer was the remote cause of the injury, and that of the plaintiff the proximate cause of the injury, then the plaintiff cannot recover.”
This instruction, especially in the absence of the qualifying word “negligent” before the word “conduct,” was erroneous within the views expressed in Rld. Co. v. Plunkett, 25 Kas. 188; and as in that case, so here — if the plaintiff below was guilty of the negligence at all, it was certainly as near as to the injury as was that of the company.
The court also instructed the jury that—
“The plaintiff was bound to exercise ordinary care and prudence in attempting to fasten the coupling to the cars, and though the jury believe from the evidence, that the coupling in question was dangerous, still1, if they further believe from. the evidence that the accident in question is attributable to the want of ordinary care on the part of the plaintiff, then he cannot recover unless the jury further believe from the evi dence that the defendant was guilty of such gross negligeuce as implies willful injury. The jury are further instructed if they believe from the evidence that the plaintiff was injured (being at the time an employé of the defendant) in consequence of the negligence of the engineer in charge of the engine, and the plaintiff at the time was free from any contributory negligence, the plaintiff is entitled to recover.”
A part of this instruction was misleading, from the fact that it was apparent from the evidence that the engineer was not guilty of such gross negligence as implies willful injury. The most that can be charged against the engineer, if anything, is that he was guilty of negligence in the application of too much steam to the engine, or in the management of the engine whereby the car cut off was sent back at a fast and unusual rate of speed. The jury found as a matter of fact,that the plaintiff below had control of the engineer as to signals, and that the engineer obeyed the signals to start, stop, and cut off. Instructions should, as far as possible, conform to the actual facts in proof, and the giving of abstract propositions of law, however good in themselves, if not applicable to the case on trial, often distracts and confuses the jury, and in cases like the one at bar, is liable to be greatly prejudicial. As there was mo evidence tending to show gross negligence implying willful injury on the part of the railway company or its engineer, the trial court ought not to have used such terms in its direction.
Further, while it is settled in this state that a party may recover for injuries done to him or his property, caused by the negligence of others, even if his negligence is slight, nevertheless this court has not adopted what is generally called the rule of comparative negligence. Under the law as settled in this state, ordinary negligence on the part of á plaintiff will defeat a recovery except in the case of wanton or willful injury. Where two parties, of each of whom the exercise of ordinary care is required, are guilty of negligence contributing to the injury of 9ne of them, the injured party cannot recover damages therefor from the other on the sole ground that his negligence was less than that of the other, and generally the mere fact that the plaintiff has been guilty of less negligence than the defendant will not authorize a recovery on his part. And if; in the case at bar, the company or its engineer was guilty of slight negligence only, the plaintiff below would hot have any right to recover, even if he were not guilty of any negligence at all, for in this class of cages a railroad company is liable only for ordinary negligence, and not for slight negligence. Therefore, if the plaintiff be-^ow himselt was guilty of ordinary negligence contributing to the injury, he cannot recover, if the negligence of the railway company or its engineer was merely greater than his, for the plaintiff below must have exercised ordinary care, and not have been guilty of ordinary negligence. Upon a new trial, the instructions of the court below will conform to the views herein expressed.
Within the prior decisions of this court, the damages awarded by the jury, are excessive. The plaintiff below lost the thumb and first finger.of his right hand; he was up a little over a month and could not d0 anything for three or four months, but he was at no expense for surgeons, as medical assistance was furnished him by the railway company. He spent a little for drugs, and* was nursed by his wife. In Railway Co. v. Hand, 7 Kas. 380, the injured party was hurt in the third finger.of his right hand, causing a slight deformity and some loss of power in the hand; besides other bruises, he had received an injury to his lung, which caused him some uneasiness and rendered him more liable by exposure to attacks of a pulmonary character. His counsel claimed, in the argument of that case before this court, that the evidence adduced tended to show that the time of the injured person, while suffering from the immediate effects of his injuries, was worth $1,800; that his board and physician’s bills would carry these figures to $2,000. The verdict was $5,000. Yet, Kingman, p. J., speaking for the court, said: “An examination of the evi-. dence has convinced us that the damages awarded are so excessive as to show plainly that the verdict was given under the influence of passion or prejudice, and ought to be submitted to the judgment of another jury.” In Railway Co. v. Milliken, 8 Kas. 647, it was shown that the yardman at Ells-worth was assisting in making up a train at that point; that while engaged in coupling cars, his hand was caught between the drawheads of the cars and so crushed that amputation was necessary. Mr. Justice Brewer, for the court, said in that case: “Where the sole permanent injury was the loss of a hand, which was amputated just above the wrist, without any protracted sickness or lengthy confinement, an award of $10,000 shocks the sense of right. ... In whatever light we look upon this verdict, it seems to us to be largely in excess of a fair compensation for the injury.” In Railway Co. v. Young, 8 Kas. 659, the injury- was the loss of a hand, happening while the employé of the railway company was attempting to couple cars. The verdict was $9,000. This was also held excessive. If an award of $10,000 for the loss of a hand taken off at the wrist was so excessive as to shock the sense of right, (Railway Co. v. Milliken, supra,) an award of $6,500 for the loss of the thumb and finger of a hand, clearly indicates passion or prejudice on the part of the jury. Counsel for defendant in error.refer to the case of Railway Co. v. Young, 19 Kas. 489, where a majority of this court decided not to set aside a verdict of $10,000. The first time that ease was before this court it was held that $9,000 damages were excessive. It was then submitted to the judgment of another jury. Upon the second trial, the jury gave $10,000. A court must hesitate greatly before twice setting aside a verdict on- the sole ground of excessive damages; and in view of the many years (nearly ten) elapsing between the injury and the final verdict in that case, and in view further of the fact that two juries had decided in favor' of so large damages, a majority of this court thought they ought not to disturb the verdict solely for excessive damages. That case, owing to these circumstances, is not parallel with this. Following the prior decisions of this court, the amount of damages given by the jury is so largely in excess of any fair compensation for the injury inflicted ás to require us to interfere, and set the .verdict and judgment thereon aside.
Other questions are elaborately discussed in the briefs, but sufficient has been said already to indicate the views of the court as to the declaration of the law governing the case upon another trial.
The judgment of the district court must be reversed, and the cause remanded. .
Brewer, J., concurring. | [
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] |
The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Bourbon county, brought by plaintiff in error, plaintiff below, to recover of defendant money claimed to have been wrongfully appropriated by him while acting as officer of said-plaintiff bank. The case was tried by the court, with a jury. At the close of plaintiff’s evidence a demurrer thereto was sustained, and judgment entered in behalf of the defendant; and now the plaintiff brings the record here for review. There are three separate transactions alleged in the petition, and.supported by the testimony, in respect to each of which the plaintiff claims the right to recover. The facts are these r The plaintiff since 1871 has been a national bank, incorporated under the laws of congress. During all of the transactions hereinafter stated, defendant was one of its directors. Prior to May 7,1877, one L. C. Nelson had been its cashier, under a salary prescribed by the board of directors, of $1,800 per annum. At that time he resigned, and defendant was appointed his successor, and continued to act as cashier until July 7, 1880. The plaintiff claims (l)-that this change of cashier was made in the interest of economy, and upon the agreement on the part of defendant that if he could have office room in the bank building for the transaction of his-private business, and could keep his private safe and papers-there, he would discharge the duties of cashier without compensation ; and that, notwithstanding this agreement, the defendant did charge up on the books of the bank and appropriate to himself the sum of $3,165.50 as salary as cashier. The- bank claims (2) that, by one of its rules, no interest was payable on demand certificates of deposit; that this rule was known to the defendant as its cashier, and enforced by him generally as to third parties; but that, notwithstanding this, he caused to be issued to himself demand certificates drawing large interest, and took thereon from the funds of the bank as interest on such certificates the sum of $2,203.97; and (3) that the bank was the owner of $10,000 of Bourbon county bonds, for which it had paid $9,314.80, and that the bonds were at the time of the following transaction worth par and accrued interest; that, as officer of the bank, defendant sold these bonds to himself for $9,300 — $14.80 less than the bank paid for them, and $846.66 less thán they were worth.
These are the three matters of which the plaintiff com-' plains, and in support of which it offered testimony. We shall not attempt to review the testimony, or state in detail what it was. It is enough to say that there was testimony tending to sustain the plaintiff’s claim; testimony from which a jury might find the facts to be as alleged. We do not say that the jury must necessarily have found them to be so, but simply that they might have so found them. Hence, for the purposes of this inquiry, they must be taken as so found, for it is a familiar rule in respect to demurrers to evidence, that they can be sustained only when upon any and all facts which may properly be found by the jury from the testimony presented, the plaintiff, as matter of law, is not entitled to recover. So, without attempting to weigh or compare conflicting matters of testimony, or to conjecture what the jury would probably have found to be the facts, it must be accepted for the purposes of the present inquiry as true, (1) that defendant was appointed and accepted the position of cashier upon the agreement that he would discharge its duties without compensation, other than office, safe and desk room for his private business; and, notwithstanding such agreement, actually took and appropriated to himself of the funds of the bank the sum stated as compensation; (2) that the rules of the bank, known to himself, forbade interest on demand cer tificates; that, in defiance of those rules, he caused to be issued to himself demand certificates drawing interest, and actually took from the funds of the bank the sum stated as interest on such certificates; (3) that, as an officer of the bank, he sold the Bourbon county bonds, worth par and accrued interest, as above stated, to himself for $846.66 less than they were worth.
These being facts, can the plaintiff recover? and if not, what legal obstacle to recovery appears? The defendant, denying of course some of the facts above stated, claims that even if they be literally true, all the transactions were duly entered on the general books of the bank, open to the inspection of the officers and directors; that in law the directors are conclusively presumed to have known the fact of these entries, as well as his entire action in respect to these matters, and that thereby they acquiesced in and ratified his action. In other words, that the directors might in the first instance have’bound the bank by giving him the sum taken as salary; and that, knowing he was so taking it, they-acquiesced in and ratified the act, which is the same as though in the first instance they had contracted to give it to him. Also, that they could lawfully and properly agree to pay interest on demand certificates as well as upon any other indebtedness of the bank; that if they deemed the interests of the bank required, they could pay interest to one party and not to another. In short, that their judgment as to the best interest of the bank in the matter of interest was finally conclusive, and that their knowledge that he was taking such certificates and such interest was equivalent to a direct authority therefor, and-bound the bank to the same extent that a prior resolution directing it would. And also, that they had power to sell any of the properties of the bank for such a sum as they deemed best; that their action could not be repudiated by the bank simply by proof that the property was in fact worth more than they received; and their knowledge that the property was sold for such a sum, is equivalent to a sale directly by their authority. Furthermore, it is con tended that during all these transactions, the defendant was a large owner of the stock in the bank; that at the time of the bond matter, he in fact owned over four-fifths of the stock, which, in October, 1880, he sold; and that the purchaser then bought into the bank, taking the assets as they were, and with no right'to challenge prior transactions between the bank and its officers. As the learned court, before whom the case was tried, said in the opinion sustaining this demurrer:
“Drake himself, was practically the bank; its assets and its pi’operty were his; the profits, if any, were his; the losses, if any, were his; and he could do with his funds and assets just what he pleased; but of course, as before stated, he could not mismanage or misappropriate the funds of the bank .against any depositor, or creditor, not consenting; and if he should do so, the law could, and in a proper action would, redress their grievances. But no eestui que trust is alleging any grievance here. The action is brought in the name of the bank by the present owners, who .purchased the bank from Mr. Drake himself; and without alleging any fraud upon themselves in their purchase, without alleging that they did not obtain all they purchased, they seek to recover • what they did not buy nor pay for, by going back and alleging that during his management he reduced the assets of the bank by paying himself a salary he was not entitled to; by paying himself interest upon deposits for which he held certificates; and by purchasing bonds from the bank at less than their value.”
It will help to a clearer understanding of the questions involved, to consider the rights of the parties independent of the two matters of defense suggested, and here we find two propositions -involved: (1) An agent contracting to work for his employer at a stipulated compensation, and being in possession of his employer’s funds, appropriates a larger amount in payment of his services. (2) An agent acting on behalf of his principal, contracts with himself to the prejudice of the interests and against the instructions of his principal. The bare statement of these propositions is enough. If A agrees to work for B for $100 a month, that contract determines the limit of his compensation. The same rule ob tains if, instead of a money compensation, he contracts to work for office, desk and safe room. The contract measures . both rights and obligations. The agent alone may not change it, and this notwithstanding his services may have been of incalculable benefit to his principal. His possession and control of the funds of his principal give him no added rights. A failure to return all funds and properties of such principal in excess of the stipulated compensation, gives to such principal a clear and undisputed right of action. Neither is the rule changed by the fact that the principal is an incorporation and the agent its chief executive and managing officer. These propositions are elementary. The authorities not only universally sustain them, but, in addition, in cases in which a director of a corporation is the agent seeking additional compensation, go far beyond them. In Rld. Co. v. Richards, 8 Kas. 109, the court says: “If the services were rendered with an understanding that they were gratuitous, then there could be no recovery.”
In Loan Association v. Stonemetz, 29 Pa. St. 534, a director, Stonemetz, was chairman of the committee on short loans. The labor performed by him in that capacity was quite burdensome. No salary for these services had been agreed upon; but a year and a half after his appointment, the board of directors fixed the salary at $200 a year, this to date from the time he first acted, and issued him an order for $300 to pay for that back salary. Payment of the order being afterward refused, he brought suit and recovered in the lower court. The supreme court, in revefsing this judgment, says, p. 536:
“We regard it as contrary to all sound policy to allow a director of a corporation, elected to serve without compensation, to recover payment for services performed in that capacity or as incidental to his office. It would be a sad spectacle to see the managers of any corporation ^ecclesiastical or lay, civil or eleemosynary, assembling together and parceling out among themselves the obligations or other property-of the corporation, in payment for their past services.”
“ The expectation of a director that he was to receive com pensation, there being no previous vote or promise, does not entitle him to it. The rule which excludes compensation, applies to the president chosen by the directors from their own number, and also to a treasurer, when a director.” (Pierce on Railroads, 31.)
.. In Citizens’ National Bank v. Elliott, Iowa, December, 1880, ( 7 Northwestern Rep.,) the vice president of a national bank rendered “valuable and efficient” services, worth $1,000, but the court said he could not recover, except his salary had been fixed or agreed upon beforehand by the board of directors of the bank. “A corporate officer who performs the duties of his position is not, in the absence of agreement with the corporation, entitled to any compensation therefor.”
Nor can the directors, after the services have been performed, pay for such services, unless per contract theretofore made. The reason is, that the board cannot give away the money of the stockholders. They can be liberal or charitable with their own private funds, but as ' agents, cannot be liberal with money of their principals.
“A subsequent vote of the board to pay a director for his .services, when there was no previous agreement, is not binding.” (Pierce on Railroads, 31.)
See also Chandler v. Bank, 13 N. J. L. (1 Green), 255; Rld. Co. v. Miles, 52 Ill. 174; Merrick v. Peru Coal Co., 61 Ill. 472; Rld. Co. v. Sage, 65 Ill. 328; Cheney v. Lafayette Rld. Co., 68 Ill. 570; Cheney v. Lafayette Rld. Co., 87 Ill. 446; Linen Co. v. Hough, 91 Ill. 63; Henry v. Railroad Co., 27 Vt. 435; Hall v. Rld. Co., 28 Vt. 401; Hodges v. Rld. Co., 29 Vt. 220; Fraylor v. Sonora Co., 17 Cal. 594; Ins. Co. v. Crane, 6 Metc. 64; Rld. Co. v. Ketchum, 27 Conn. 170; Levisee v. Rld. Co., 27 La., An. 641; Rogers v. Hastings & D. Rld. Co., 22 Minn. 25; Santa Clara Mining Assoc. v. Meredith, 49 Md. 389; Bailey v. Buffalo, 14 Hun, 483; Jackson v. Rld. Co., 2 Thompson & C. 653.
In Holder v. L. B. & M. Rld. Co., 71 Ill. 106, the plaintiff, Holder, a director, served as treasurer of the railroad company from September 1,1867, to January 31,1872. No salary had been agreed upon for his services. The board of directors then allowed $4,000 for the services he had performed to that time. A warrant of attorney.was issued, and'1* judgment entered upon it. Upon application of the company, that judgment was set aside, and the company let in to defend. Judgment went against him, which was affirmed in the supreme court, which says, page 108:
“Again, they [the board of directors] are managing a fund as trustees for the stockholders, and they have no right to use or appropriate the funds of the cestui que trust to themselves. They have no power to" waste, destroy, give away or misapply it.”
And there being no legal obligation, the directors could notallow payment, and the judgment was affirmed. (See also Gridley v. L. B. & M. Rld. Co., 71 Ill. 200; Kirkpatrick v. Penrose Ferry Co., 49 Pa. St. 118; Butt v. Woods, 37 N. Y. 317; Holland v. Bank, 52 Me. 564.)
In Maux Ferry Gravel Road Co. v. Branegan, 40 Ind. 361, the board of directors adopted the following order with reference to services then performed:
“Ordered, the officers of the Maux Ferry gravel road allow themselves in bonds a reasonable compensation for their services: James M. Alexander and P. K. Parr, $100 each; N. S. Branegan, Will. Ditmars, and Isaac Sawin, $50 each.”
Branegan brought suit on his $50 bond, recovered judgment, and the supreme court ieversed it.
Illinois Linen Co. v. Hough, 91 Ill., 63, supra, is a case which in its facts is quite similar to this one. Hough was president of the company, and did a large amount of work for it in the management of its business. He testified: “ I spent my whole time, while I was president of the company, night and day, except when superintending farm. I purchased fiber and looked after whole business, outside and inside. I averaged about twelve hours per day. My services were reasonably worth $5,000 for eighteen months.” The evidence showed he was also largely engaged about his own private affairs, looking after his farm and other affairs of his own. The by-laws of the linen company provided that offi cers should receive such salaries as were fixed by the stockholders. The other officers of the linen company testified that Hough had agreed to serve without pay. He recovered for his salary. The supreme court, on page 67, approves the following instruction as given in the lower court: “Or, if you shall believe from the evidence that it was agreed by the plaintiff and the other officers of the defendant, that they should not charge for or receive any compensation for their services rendered by them, then the plaintiff would not be entitled to recover upon his claim for such services;” and reversed the judgment, remarking that all the officers except Hough testified that he agreed to make no charges for his services.
So, also, the doctrine that an agent cannot contract with himself against the instructions of his principal and to the prejudice of such principal’s interests, is also elementary, and abundantly supported by the authorities. It rests upon the most simple and ordinary principles of common honesty. Agency implies trust, and no man may violate a trust. This doctrine applies to the matter of taking unauthorized interest, as well as to the purchase of the Bourbon county bonds. It is true, the testimony as to this last transaction shows that the transfer was made after the defendant became president, and by the then acting cashier. But the jury would be justified in finding that it was by the direction of the defendant as president, and was really a purchase by himself as an individual, from himself as agent of the bank. This doctrine is of universal application. In 1 Story’s Eq. Jur., §323, the author says:
“On the whole, the doctrine may be generally stated that wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those- interests which he is bound to protect, he will not be permitted to hold any such advantage.”
The doctrine has been applied by this court to dealings between an attorney and his client, (Yeamans v. James, 27 Kas. 195;) to contracts made by directors of a corporation, (Ryan v. Rly. Co. 21 Kas. 365;) and is unquestionably applicable to the actions of a bank cashier. Morse on Banks and Banking, page 196, says:
“It has never been held that the position of the cashier was precisely that of a legal trustee. Yet the qualities of a trust can never be wholly wanting where an agent has committed to him the-management of the property of other persons for definite purposes. To say that he cannot either directly or indirectly use his influence or any of his powers to secure advantages to himself, is only to assert what has never been called in question; and it makes no difference that his conduct was not, or was not intended to be, hurtful to the bank. If he wishes any species of accommodation from the bank, even though he might have power to grant the same to another, he will not be safe in granting it to himself, without express permission from the board of directors. The familiar rule of agency, that one shall not be agent for another party in a contract in which he is himself interested, a fortiori, in which he is a principal on the other side, suffices, to prohibit this. But further than this, in his own dealings with the bank he is held, like a trustee, to exercise a much greater degree of scrupulosity and thoroughness of regard for the interests of the bank, than in the conduct of like dealings had by other people with it.”
In Austin v. Daniels, 4 Den. 299, the court, on page 301, says:
“Bank officers are but the agents of the corporation, and if they transcend or abuse their powers, are as much responsible to their principals as are the agents of an individual. This ought to be regarded as too plain to require argument or authority, and I shall offer none.”
In Torrey v. Bank of Orleans, 9 Paige, 649, the court says, on page 663:
“It is a settled principle of equity, that no person who is placed in a situation of trust or confidence in relation to the subject of a sale can be the purchaser of the property on his own account. And in the recent case of Greenlaw v. King, 'decided in the Court of Chancery in England in January, 1841, (5 Lon.-Jur. 18,) Lord Cottenham held that the principle was not confined to a particular class of persons, such as guardians, trustees, or solicitors, but was a rule of universal application to all persons coming within its principle, which is, that no party can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the character of purchaser.”
See also to the same effect, Butts v. Wood, 37 N. Y. 317; Robinson v. Smith, 3 Paige, 222; Hale v. Bridge Co., 8 Kas. 466; Gardner v. Ogden, 22 N. Y. 327; Goodwin v. Cincinnati & Whitewater Canal Co., 18 Ohio St., 169; Kœhler v. Black River Falls Iron Co., 2 Black, U. S. 715. The last case, from the highest court in the land, declares that “ the •officers and directors of a corporate body are trustees of the ■stockholders, and in securing to themselves an advantage not common to all the stockholders, they commit a plain breach of duty.” (See also Pierce on Railroads, p. 39; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md. 456; G. C. & S. S. R. Co. v. Kelly, 77 Ill. 426; Flint & Pere Marquette Rld. Co. v. Dewey, 14 Mich. 477; The People v. Township Board of Overyssel, 11 Mich. 222; Minor v. Mechanics’ Bank of Alexandria, 1 Pet. 46.)
We have cited these authorities, not because the two'propositions above stated need support, but as indicating to what extent they have been carried. Further, they prepare for a better appreciation of the defenses presented. If we were to follow some of them to their full extent, we might safely concede the premises of defendant’s argument, and still deny his conclusions.' Thus, if the directors have no power to bind the corporation by a direct vote, granting pay for past services in any capacity to one of their number who agreed to serve without compensation, a fortiori, the corporation is not concluded by a presumed ratification through a supposed knowledge and' acquiescence on the part of such directors. What cannot be done directly through lack of power, is never accomplished indirectly by silence, acquiescence and ratification. But let us examine the argument of defendant. It may be stated briefly thus: The directors might by a prior vote have authorized everything that defendant did. That which they could authorize, they can ratify. They are conclusively presumed to know the general condition and man agement of the bank, and included in this, the receipts and disbursements as in fact made and as shown by the entries on its general books. Therefore the directors knew what defendant was doing, and acquiescing therein, they ratified his actions. We think this argument as applied to the facts of this case is open to several objections. The testimony shows, or tends to show at least, that in fact the directors did not know what defendant was doing, and therefore did not consciously approve and ratify his actions. Now this legal imputation of knowledge cuts both ways. If the directors are, because they are directors, conclusively presumed to know what he, as cashier, is doing and omitting to do, then likewise he, as a director, is conclusively presumed to know what the other directors, as individual officers, and what the board of directors as a whole, are doing or omitting to do. If they know that he is taking funds of the bank without authority, he knows that they do not ratify it. He knows their acts and omissions as well as they his. Indeed, -it is more justly and-certainly to be presumed that one director knows what .his fellows, single or as a board, are doing or omitting, than that the board should know what an executive officer or clerk is doing or omitting. This imputation of knowledge is of course a mere legal fiction, and it makes against as well as for the defendant. If it is good in favor of a director, it is equally good against him. In short, it leaves the parties-to rest their rights and liabilities on the actual facts of authority and conduct.
Again, conceding that the legal presumption of knowledge is supported by proof of actual knowledge, and still ratification would not follow as matter of law. The directors may know that a cashier is disobeying the rules of the bank, and still a failure to take immediate action in disavowal does not, as matter of law, operate to ratify and validate such disobedient act. Knowledge and failure to act may be evidence, sometimes very strong and conclusive evidence, of ratification; but still it is only evidence tending to prove a fact which, with other testimony bearing upon the same fact, is generally to be weighed by the jury rather than by the court. If the act is done under a mistaken belief in the existence of authority, then knowledge with acquiescence for any length of time tends strongly to prove ratification. But if the authority is known to be wanting, if, further, the act is known to be expressly forbidden and to be directly and substantially prejudicial to the interest of the bank, then a failure to take active measures-in disavowal may be weak and inconclusive evidence of a ratification. Take the case at bar for illustration: Ignore all matter of presumption, and assume that actual knowledge was conclusively proved; then if from a misunderstanding as to the real agreement, or upon a supposed authority, defendant charged up his salary on the books of the bank and took the money therefor, and the directors, fully aware of this condition of things, made no objection for a series of months, such acquiescence would make strongly in favor of the correctness of defendant’s understanding of the agreement, and would be very conclusive-evidence of the a ratification of his action. But if both he and they knew that the agreement was plainly that he should act as cashier without other compensation than office, desk, and safe room for his private business, and that notwithstanding this, and without pretense of right, he charged up a salary and took the money therefor, then the failure of the directors to act is far weaker evidence of ratification. It does not tend to show what was the real agreement; for by the supposition, both parties knew the agreement, and that it forbade the defendant’s act. Instead of being a ratification-of an unauthorized act, it may have been a mere tolerance of a known wrong, and this in consequence of the present pressure of other and more important considerations. Where both parties know that an act is wrong, the failure of one to object to or resist it does not make it right for the other.
But what is ratification? Counsel for plaintiff in error say it is the acceptance by a principal of the acts of one who, without original authority, acted with third parties, in the name of such principal; that it is therefore only a branch of the doctrine of principal and agent. This is too limited. Burrill, in his Law Dictionary, says that “ratification is the confirmation of a previous act done either by the party himself, or by another; that it is the confirmation of a voidable act,” and cites as authority, Story on Agency, §§ 250, 251; and also, 2 Kent’s Com., p. 237. One of those citations treats of the relations of principal and agent, the other of the confirmation of the acts of an infant by himself.after becoming of age. Bouvier, in his Law Dictionary, gives similar scope to the meaning of ratification. We think, therefore, it will not do to say that it is strictly a branch of the doctrine of principal and agent. It is the confirmation of a voidable act. It is entirely immaterial what that is which renders the act voidable; whether a lack of present power to make a valid contract, as in the case of infancy, or because o£ fraud and misrepresentation on the part of the other contracting party, or because it is the unauthorized attempt of an assumed agent to,bind his principal. Wherever there is a voidable act, confirmation of that act by the party assumed to be bound, is in law a ratification. But in order to constitute a valid ratification there must be knowledge. In Bouvier’s Law Dictionary the author says: “The ratification must be voluntary, deliberate, and intelligent, and the party must know that without it he would not be bound.” In Story on Agency, § 239, the author says: “ Where the principal, upon a full knowledge of all circumstances of the case, deliberately ratifies the acts, doings or omissions' of his agent, he will be bound thereby as fully to all intents and purposes, as if he had originally given him direct authority in the premises to the extent which such acts, doings' or omissions reach,” citing Hardeman v. Ford, 12 Ga. 205; Billings v. Morrow, 7 Cal. 171; Rld. Co. v. Gazzam, 32 Pa. St. 340.
Again, “ while the act of an agent, though unauthorized at the time, may become binding upon the principal by ratification and adoption, to make such ratification effectual it must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the act to be ratified; and if the principal assent to the act while ignorant of the facts attending it, he may dis-affirm it when informed of such facts.” (Express Co. v. Trego, 35 Md. 47. See also Combs v. Scott, 12 Allen, 493.) Indeed, in the very nature of things, this must be true. The effect of ratification is to create a contract; but a contract implies assent, and how can there be assent without knowledge? That by all the books is one of tfie essentials to a contract; and this brings us to the inquiry as to the matter of knowledge.
Assuming that these acts of the defendant are shown to have been done without previous authority, they would be binding on the bank only, because ratified by it, and no ratification is proved unless knowledge is shown.' The directors constitute the governing body of the bank; the bank itself being an incorporeal entity, without power to see or know. The directory constitutes the visible representative, the thinking, knowing head of the bank. Its knowledge and purpose is the knowledge and purpose of the bank; and here we meet the proposition upon which the defendant rests: that the-directors are in law conclusively presumed to know the condition of the bank, its business, receipts and expenditures, and all the general facts which go to make up that condition and business, as shown by the entries on its regular books; and in support of this proposition are cited the cases of Bank v. Rudolph, 5 Neb. 527; Rich v. Banks, 7 Neb. 201; Bank v. Wulfekuhler, 19 Kas. 60; Arlington v. Pierce, 122 Mass. 270; Dunn v. St. Andrew’s Church, 14 Johns. 118; Bank v. Dandridge, 12 Wheat. 64 ; Morse on Banks and Banking, pp. 90, 91; Bigelow on Estoppel, 1st ed., p. 549; and Green’s Brice’s Ultra Vires, 2d ed., ch. 6.
In 5 Neb., supra, it is said :
“It is insisted that being the vice president and one of the directors of the bank, he was in a situation which required him to know the condition of its business, and must be conclusively presumed to have known whether said note had been paid, or not. No case directly in point has been cited, but we apprehend that the rule contended for is the correct one. In Morse on Banks and Banking, pp. 90, 91, the author thus states the rule: ‘The general control and government of all the affairs and transactions of the bank rest with the board of directors. For such purposes the board constitutes the corporation, and uniform usage imposes upon them the general superintendence and active management of the corporate concerns. • They are bound to know what is done, beyond the merest matter of daily routine, and they are bound to know the system and rules arranged for its doing.’ ”
And in Bigelow, supra, we find the doctrine thus laid down:
“In accordance with the principles in the above cases, directors of corporations being bound to know the proceedings of the body, cannot escape an estoppel by the allegation of ignorance.”
In the case from our own court, Mr. Justice "Valentine uses this language:
“For while we assume, as a matter of fact, that Wulfekuhler knew nothing of the condition or management of the bank, and nothing of the condition of Herman’s account with the bank, yet still, as a matter of law, we think we must presume that he knew all about these matters. He was a director and the vice president of the bank, and it was his duty to have such knowledge, and therefore the law will conclusively presume that he had it.”
These authorities abundantly establish the proposition that there is as to the directory a certain legal presumption of knowledge as to the transactions, business and condition of the bank, which is conclusive upon the bank, and against, the existence of which, as a matter of fact, no testimony will be received. Upon this doctrine rests substantially the burden of the defense. We are not disposed to limit or restrict the scope of this doctrine. It is one founded in public policy, essential to the safety of third parties in their dealings with the bank, and to the protection of the stockholders interested in its welfare and safe management. So far as is necessary to accomplish these results, it should be carefully and strictly upheld; but it should not be carried beyond this, or to such an extent as to work injury to the bank. Its purpose is to impose the strictest fidelity and watchfulness upon the directors as custodians of a most important and delicate trust; a purpose which would be thwarted if it were turned into an instrument of injury and destruction to the bank and its stockholders.
The directory, as has been said, is the visible representative of the bank. Persons dealing with it meet only this visible representative, and have a right to presume that it knows all of the affairs of the bank, all that the bank as a principal ought to know of its condition and business. On the other hand, the stockholders and depositors — the persons who are pecuniarily interested in the safe management and prosperity of the bank — look to the directors as the chosen guardians of their interests, and have a right to demand of them that they watch over all those interests in their minute details. So that all of these parties have a right to assume that the directors know all the transactions, business and condition of the bank; because they ought to know •them, and because otherwise they do not discharge their full duties to these various parties. But as to an officer and director the reason for this conclusive presumption fails, and therefore the presumption -itself should not be held to exist. Upon the defendant as director and -officer rests the same measure of responsibility as upon all the other officers and directors. He is presumed to know as much as they are presumed to know. He is within .the inner circle of the bank’s life, and by ordinary attention may in fact know all that is necessary to govern his action, or to measure his duties and obligations. Presumptions are for the benefit of those outside, who cannot in fact know, and who must rely upon the ■representations and acts of those inside. But for those inside the bank, there is no need of any presumption, and for •the simple reason that they are where they may in fact know.
Again, the successful management of. a bank requires the fullest confidence and cooperation between the directors and «mployés. Every fact which each knows, which the other ought to know, should be told. No one has a right to withhold a fact, within his own knowledge, of interest to the-bank, and which ought to be known by any other officer or-director; and no rule is wise of should be upheld which encourages secresy in such matters on the part of any officer. If a cashier is taking money, claiming it as salary, he ought-to see to it that the directors know the fact; and no rule-should be tolerated which makes it profitable for him to take-the money secretly and without their knowledge.
Again, no officer should be permitted to enforce his own-wrong against his principal, the bank, through the inattention- or neglect of any other agents of the bank. Clearly, one agent cannot empower another to do wrong. Can the inattention and neglect of the former make the wrong of the latter effective and remediless? (Minor v. Bank, 1 Pet. 46.) Any other rule would put it in the power of the officers of the bank to plunder it enormously in safety. Let the book-keeper and cashier of any bank combine, and it is easy to see how they could -for a length of time continue plundering the bank unknown to anyone, and this though every transaction should be entered on the books of the bank. This, which is so obviously possible, as a matter of fact not unfrequently occurs. In such cases, can it for a moment be held that the ignorance of the directors condones the wrong, or leaves the bank without remedy? This it may be said is a glaring illustration, but the principle which underlies this is the same as that controlling the case at bar. If, as a matter of fact, defendant took the office of cashier upon an express contract to receive as compensation therefor nothing but office, desk and safe room for his private business, and did, notwithstanding this contract, without the knowledge and authority of the board of directors, take the money he is charged to have taken, it was as unmistakable and glaring a violation of official duty, as gross a wrong upon the bank and its stockholders, as though a cashier and book-keeper should combine and surreptitiously take from the vaults of the bank the money placed with it by the depositors. The cashier prior to the defendant was allowed a salary of $1,800. Supposing he had taken $5,000 out of the vault and charged it to himself on the books of the i bank as salary, and the entry had escaped the notice of the directors for a length of time: could not the bank show the fact, and recover the excess? or would the ignorance and carelessness of the directors be equivalent to voting him a salary of $5,000? Public policy unquestionably withholds its sanction from any doctrine which will work out such pernicious results. It sustains the doctrine of imputed knowledge on the part of the directors, only so far as will protect the dealings of third parties .with the bank, or will prevent the bank from suffering through inattention or wrong from the directors themselves; and will not carry it to the inner management of the bank, or prevent full inquiry as to the facts of any transaction therein, or the actual authority for any act done by its officers. We think, therefore, the principal ground for the defense cannot be sustained. As 'to the other, little need be said. The fact that the defendant owned four-fifths of the stock, did not authorize him to do with the assets of the bank what he pleased; the directors of the bank, and not he, acted for it. His ownership of the stock gave him voice only in electing the directors: when' elected, his control of the actions of the bank ceased. If he had taken moneys which belonged to the bank, he could not defend against an action brought by it to recover such moneys by proof that he owned four-fifths of the stock. Unless he owned all the stock, he could not condone his own wrong or prevent the bank from recovering the full amount, and thus protecting the interests of the lesser stockholders. In Hazard v. Durant, 11 R. I. 196, a suit was brought by a stockholder to compel the president to account for funds belonging to the company, which the president had converted to his own use. The defendant pleaded a ratification, but the court said:
“To hold that a corporation could gratuitously condone or release such a fraud by anything short of unanimous consent, would be monstrous; for it would be in effect to hold that a president or director who can control a majority vote-in the corporation, may rob or despoil it with impunity.”
In Bayshaw v. Rld. Co., 7 Hare, 129, the vice chancellor says:
i(I think the plaintiff in this case has shown that the directors have misapplied and are about to misapply the £100,-000 I have adverted to, that is, the £100,000 raised under the Hadleigh act. No majority of the shareholders, however large, could sanction the misappropriation of this portion of the capital. A single dissenting vote would frustrate the wishes of the majority. Indeed, in strictness, even unanimity would not make the act lawful.”
(See also Kent v. Mining Co., 78 N. Y. 159.) And if defendant could not defend against the action of the bank by proof that he owned four-fifths of the'stock, if the bank had a cause of action notwithstanding such ownership, we fail to see any principle upon which his sale of the stock destroyed the bank’s right of action, or gave him a new defense. It follows from these considerations that the district court erred in sustaining the demurrer to the evidence, and that the judgment must therefore be reversed, and the cause remanded for a new trial.
As this case goes back for a new trial, we desire to add, to guard against any misconception, that we do not agree with all the authorities heretofore cited as to the lack of power on the part of the directors to appropriate money in payment of the salary of the cashier, or other officer, after the services have been rendered, and in cases when such cashier or other officer happens to be a director: we think the rule is, in the absence of positive restrictions, that where no salary is prescribed, one appointed to an executive office, like that of cashier, is entitled to reasonable compensation for his services, and that the directors have power to fix the salary after the expiration of the term of office, and this though such appointee is also a director and continues to be such while holding the independent office.
Again, while we do not think it can be said as a matter of of law, that the directors are conclusively presumed to know the general business and condition of the bank as shown by the entries on its books, in a case of this kind, and thus to ratify the action of the cashier in fixing his own salary and in taking the funds of the bank in payment thereof, yet we think a question of fact may often be presented which is fairly to be submitted to a jury for its determination, and that is, whether, independent of any proofs of actual knowledge, the' action of the cashier has not been so open and long continued and under such circumstances, that it may be inferred as matter of fact that the directors assented to the payment of such salary. We think the question is rather to be treated as a question of fact and to be determined by a jury, as to whether the bank acquiesced in and ratified the action of the cashier, than to be disposed of as a question of law, and dependent upon a purely legal presumption.
We do not care to pursue the discussion further. The judgment will be reversed, and the case rémanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action commenced by Loftus Grey against George E. Edrington, before a justice of the peace, to recover the sum of $39.50 upon an award of fence viewers. After judgment, the case was appealed to the district court, where it was tried before the court without a jury, which trial resulted in a finding and judgment in favor of the plaintiff and against the defendant for the sum of $38.34 and costs. From this judgment the defendant appeals, and as plaintiff in error now brings the case to this court.
It appears from the record of this case that the plaintiff below, defendant in error, did not himself build any portion of the fence in controversy; but that it was built by his grantor before he purchased the land upon which it was built, and between which and defendant’s adjoining land it constituted the partition fence. The defendant raised the question in the court below, and now raises it in this court, that as the plaintiff did not build the fence, he cannot recover for any portion thereof; and that if any claim exists in favor of any person and against the defendant below, for any portion of the partition fence, such claim is in favor of the plaintiff’s grantor, and not in favor of the plaintiff himself; that the claim is a personal claim for money, and not a claim which runs with the land. In this we think the plaintiff in error, defendant below, is mistaken. When the plaintiff purchased the land,'and obtained the conveyance thereof, the entire fence became his property; and the right to require the defendant to pay for a portion thereof, and then to keep up and repair the same, passed from the plaintiff’s, grantor to the plaintiff himself. The plaintiff then, with reference to the fence and to any claim founded thereon, stood in the exact place of his grantor, and he had a right to demand anything from the defendant that his grantor could have done before his grantor conveyed the land to the plaintiff. The award made by the fence viewers was made after the land had been conveyed to the plaintiff, and was made at his suggestion, and upon his complaint.
The defendant raised a further question in the court below, and now raises the same in this court, and that question, is this: Was the award made by the fence viewers, as to the amount of the compensation awarded to,the plaintiff, conclusive? It appears from the report- of- the fence viewers, that they awarded to the plaintiff, as compensation for that portion of his fence assigned to the defendant, the sum of $39.50. The court below held that this award was conclusive. The defendant contended otherwise, and at the trial offered to prove that he paid for such fence, or for his part thereof, at the time it was built; that he paid the person who built the same, and who owned -the same, and that such fence never became the property of the plaintiff. The court below refused to permit the defendant to prove this, upon the ground that the award of the fence viewers was conclusive. With reference to this question, we think the court below erred. The statute provides that the assignment of a share or part of the partition fence, to each of the parties, to be kept up and maintained by them, shall be final, conclusive and binding upon both of the par.ties, and upon all succeeding occupants of the land. (Comp. Laws 1879, ch. 40, § 11.) But the statute nowhere provides that the award of compensation to either of the parties shall be final or conclusive. Hence we might infer that the legislature intended that the assignment of a portion of the fence to each of the parties to keep up and repair should be final and conclusive; but that the award of compensation to one or the other of the parties should not be final or conclusive; and there are good reasons why such should be the law. The fence viewers see the fence, and see the ground over which the fence is built and upon which it is to be- maintained, and could know bettér than any person who had never seen the fence or the ground, what proportion of the fence each party should keep up and maintain; but with reference to compensation for any portion of the fence which had already been built, they might not be able to give a very iust or intelligent decision. They could not know, from an inspection of the fence or an inspection of the ground, who built the fence; nor could they tell who paid for building the same. Indeed, they could not know, from any inspection they might make upon the premises or elsewhere, anything with respect to the accounts or the business transactions had between the various owners of the land; nor is there any provision of law authorizing the fence viewers to summon witnesses, or to hear testimony with regard to these matters. If the defendant paid to the person who built the fence a sufficient compensatioh therefor, either directly or indirectly, he should not be compelled to pay for the fence a second time; or if, by any. transaction had between the' defendant and the person who built the fence, the fence was either in law or in equity paid for, the defendant should not be again. compelled to pay for the same; and these are matters that the fence viewers might not be able to ascertain with any degree of intelligence. We think, however, that the statute provides that they may ascertain the fact, whether one party has built more than his share of a partition fence or not, and if they find that he has built more than his share, then to award compensation thereforbut this award should not be held to be conclusive. Usually, we would suppose that the award would be correct; but it might in many instances be wholly wrong, and there is no appeal from such award. We would therefore think that the awaiil, with respect to compensation, should not be held to be conclusive, but that it should be held to be primq, facie only. We would think that the award of the fence viewers should be held to be prima facie evidence of the amount of money which one party should pay to the other for that portion of the fence which the other party then owned oyer and above his share, and should be prima facie evidence only. And we would think that the award in this case should be held to be prima facie evidence, and prima facie evidence only, that the defendant is indebted to the plaintiff in the sum of $39.50, with interest, for that portion of the fence assigned to the defendant to be kept up and repaired by him.
The judgment of^ the .court below will be reversed, and the cause remanded .for a new trial.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by H. W. Ide, as receiver of the Kansas Fire insurance company against George R. Hines, Herman Markson, as assignee of the Leavenworth savings bank, and others, to recover upon a note of $13,500, with, interest coupons attached, executed on July 1st, 1873, by George Hines and D. W. Eaves, and to foreclose a mortgage given by the said parties and their wives, on the said 1st day of July, to secure the notes and coupons. The answer of Markson was, first, a general denial; second, a judgment held by him as assignee of the Leavenworth savings bank against George R. Hines for the sum of $12,444, with interest and costs, rendered in the United States district court of Kansas on the 20th day of October, 1877, and claimed by him as a first and prior lien upon all the mortgaged property; third, that the Alliance Mutual assurance society never assigned or transferred the notes and mortgage, mentioned in the petition, to plaintiff, except for the purpose of raising five per cent, upon the stock pretended to be held by George R. Hines in that society, and that the society had no authority or right, nor had the person who signed as president of the company, the right to make the transfer, or any transfer whatever, of the notes and mortgage; fourth, that the pretended assignment of the notes and mortgage to the plaintiff by the acting president of. the life assurance society was without consideration, and without authority so to do, and that the plaintiff was not the legal owner and holder of the notes and mortgage, nor had the plaintiff any right to the possession or ownership of the same. This answer prayed that the judgment therein set forth should be declared a first lien upon the mortgaged premises, and that said real estate be ordered to be sold to satisfy the same. When the case was called for trial, Markson applied for a continuance, founded on his affidavit that his counsel was seriously sick and unable to attend the court. The court overruled the motion, and the cause was heard; judgment was rendered in favor of Ide, as receiver, for $29,400, with interest thereon at the rate of twelve per cent, per annum; and it was decreed that if the defendants, or some one of them, did not within six months from the date of judgment pay the said sum with interest, that the mortgaged premises be sold without redemption or appraisement, the proceeds thereof to be applied as follows: First, the costs of the action, including the costs of the sales; second, the taxes on each tract of land so sold; third, the judgment of said Ide for the sum of $29,400 with interest; fourth, the judgment of one John W. Crancer for the sum of $2,516.88 with interest; fifth, Herman Markson, as assignee of the Leavenworth savings bank, the sum of $12,444 with all interest due thereon ; and the balance pf the proceeds, if any, to be brought into court for further distribution.
The principal error alleged is, that the trial court refused to grant the continuance asked for. It appears from the record that the petition in the case was filed on the 23d day of February, 1882, and that the answer of Markson was not filed until September 4, 1882.
This answer was filed out of time, under the terms of the following order, obtained on said September 4th:
“This day came the plaintiff herein in his own proper person, and also comes defendant Herman Markson, assignee of ,the Leavenworth savings bank, by William McNeill Clough, his attorney, and thereupon, upon application of said Herman Markson, assignee as aforesaid, it is ordered by the court that leave be and the same is given him to now file his answer herein, without prejudice to a trial of this cause at this present term of court, aud upon payment of the costs of filing said answer, which is done, and upon such other terms and conditions as may hereafter be determined by the court.”
The trial was had at the December term following, and on the 13th day of January, 1883. The affidavit for the continuance, among other things, set forth that the case of H. W. Ide, as Receiver, &c., v. D. W. Eaves, Herman Markson, el al, lately tried in the court where this action was pending, was a case exactly similar to this one, and among others, involved exactly the same points raised; that that case, after having been decided, had been brought to this court upon proceedings in error. Of course, where counsel in a case is prevented from attending court by sickness, and the client is not prepared to go on with the trial, it is usually a sufficient ground for a continuance. (Shultz v. Moore, 1 McLean, 334; Graves v. Ragle, 19 Ind. 83; Vandizer v. McMiller, 37 Ga. 299; Marrero v. Nunez, 3 La. An. 54.) But the circumstances attending the disposition of this case do not show that any injustice was done to the party complaining, or that in any manner his substantial rights were affected. He makes no complaint of the judgment of John W. Crancer, adjudged to be a second lien upon the mortgaged property. The judgment which he held as assignee of the Leavenworth savings bank was decreed a third lien upon the property. Upon th.e pleadings and the uncontradicted facts the district court properly adj udged the mortgage of Ide, as receiver, a first and prior lien, and the judgment of Markson, as assignee, as a subsequent lien thereto.
The legal questions in this case having been fully discussed before the trial court in the prior case of Ide as receiver against Eaves, Markson and others, and tlie questions in this case being similar to those decided in that, the absence of counsel was not harmful. Upon1 the argument before us it was strongly urged that the cause should be reversed and sent back for trial, in order the that answer of Markson might be reframed and the case tried upon new issues likely to be presented thereby. As no such request was made of the district court, it would be unfair to that court, and not within the exercise of the legitimate power of this court to reverse its decision and send back the cause for trial upon matters outside of the record and not presented to the district court for consideration. Nothing was set forth in the affidavit for continuance alleging that the answer had been improvidently or hastily drawn, or that it was nécessary in the furtherance of justice for new or amended pleadings to be filed. In view of the recent decision of this court in Marhson v. Ide, ante, p. 649, it is unnecessary to comment upon the further questions presented in the arguments. (See also Eggan v. Briggs, 23 Kas. 711.)
The judgment of the district court will be affirmed.
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Per Oariam:
The motion to vacate the judgment heretofore entered is overruled, for the following reasons: -
I. The principal question in the case is, not whether the plaintiff in error is the owner of the land, but whether the defendant in error Van Vliet had a right to enforce his judgment by execution and sale.
2. Any person having an interest in land, whether legal or equitable, may interfere to protect such interest and prevent an illegal sale thereof.
3. The parties moving in the district court to set aside the sale, were the heirs of ¥m. Dennistown, and plaintiff in error. If the sheriff’s deed to Wm. Dennistown was valid, then the heirs held the legal-title and were proper parties to make such a motion. If invalid, then Halsey had an equitable interest if not the legal title, and therefore a right to contest the sale.
4. The assignment by Robert Halsey, if effectual to transfer the legal title to lands in this state, was a conveyance simply in trust, and left such an interest in Halsey as he could protect against any wrongful sale.
5. The heirs of ffm. Dennistown, as well as Robert Halsey, are before this court as parties — one as plaintiff and the other as defendants in error, and neither is complaining of the decision.
6. Both Robert Halsey and the Dennistown heirs gave ample authority to Lueien Bakér to take such steps as he deemed necessary to protect the land from the sale.
7. The sheriff’s deed to the Dennistown heirs was of record in the office of the register of deeds of Leavenworth county before any of these proceedings were had, and if it was desired to insist upon the validity of such deed and dispute the right of Halsey to make this motion, it was laches not to make the objection in the first instance.
8. Where an attempt is made to sell upon execution a tract of land not liable to sale thereon, and there is a doubt as to the validity of a certain deed and the consequent location of the title, no fraud is committed if the contest of such sale is made in the name of one who is believed by the counsel employed to be the party in interest, and this even though the opinion of counsel should prove to be erroneous. | [
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The opinion of the court was delivered by
'Valentine, J.:
This action was brought by the board of county commissioners of Smith county against the board of county commissioners of Osborne county, for use of the co'unty jail of Smith county, and for medical care and treatment. The plaintiff’s petition reads as follows: . ¡
“And now comes the .said plaintiff, the county of Smith, and complains of said defendant, the county of Osborne, and for cause states:
“ 1. That the said defendant is indebted to said plaintiff in the sum of two hundred and dollars, for the use and hire of plaintiff’s jail, during the years 1879,1880, and 1881.
“ 2. Plaintiff says that while said defendant’s prisoners were so confined in said plaintiff’s jail for the commission of criminal offenses, they became dangerously sick, thereby necessitating immediate medical care and treatment. Plaintiff says that by reason of the poverty of said defendant’s prisoners, being unable to pay for said- medical treatment, they could procure the necessary medical care and treatment only upon the order of the board of county commissioners of the said Smith county. Plaintiff says that by reason as aforesaid, said board of county commissioners of said Smith county made an order furnishing to said prisoners the necessary care and treatment, and that said medical care and treatment were furnished to said prisoners as aforesaid in pursuance of said order, and that plaintiff paid the same in the sum of sixty-two and T7^- dollars, which was the reasonable charge for the same.
“And that there is now justly due and unpaid to said plaintiff, by reason as aforesaid, the sum of two hundred and sixty-three and dollars, for which they pray judgment, together with costs of suit.”
It will be seen from the foregoing petition that the plaintiff attempted to allege two causes of action, numbered “ 1 ” and “2,” respectively. The defendant answered to the first cause of action, denying generally all the material allegations thereof; and demurred to the second cause of action upon the ground that the facts stated therein did not constitute any cause of action. The court below sustained the demurrer, and the defendant, excepted; and now, as plaintiff in error, brings the case to this court, and assigns the ruling of the court below upon the demurrer as error.
. We think the plaintiff’s petition is defective. It does not appear from any of the allegations contained therein, that the board of county commissioners of Osborne county ever made any order or gave any consent that any medical care or treatment should be furnished to the prisoners from Osborne county confined in the county jail of Smith county; nor does it appear that any township trustee, or the sheriff of either county, ever authorized any such medical care or treatment; nor does it appear that the prisoners were then, or ever had been, residents of Osborne county. Under such circumstances, we do not think that the board of county commissioners of Osborne county is liable for the medical care and treatment furnished to the prisoners in the present case. (Roberts v. Comm’rs of Pottawatomie Co., 10 Kas. 29; Smith v. Comm’rs of Shawnee Co., 21 Kas. 669 ; Comm’rs of Pottawatomie Co. v. Morrall, 19 Kas. 141; Comm’rs of Clay Co. v. Renner, 27 Kas. 225; Atchison County v. Tomlinson, 9 Kas. 167; Comp. Laws of 1879, ch. 25, art. 8; ch. 53 and ch. 79.)
There does not appear to be any statute authorizing the commissioners of Smith county to furnish medical care and treatment to the prisoners from Osborne county confined in the county jail of Smith county; and, indeed, there does not-seem to be any statute authorizing the county commissioners of Smith county to furnish anything in the way of care or treatment, or bedding, or sustenance, to prisoners from Osborne county confined in the county jail of Smith county. The statutes seem to contemplate that whenever these things are to be furnished, the sheriff of the county in which the jail is situated shall furnish them. (Comp. Laws of 1879, p. 294, ch. 25, §105; id. p. 512, ch. 53, §§ 3 to 10.) And the board of county commissioners of the county from which the prisoners come should pay the sheriff for everything, which he has rightly and properly furnished to the prisoners. If medical attendance was necessary in the present case, and if the prisoners are unable to pay for the same, it would be entirely proper for the board of county commissioners of Osborne county, in its discretion, under § 331 of the criminal code, to “allow a moderate compensation for medical services” furnished to the prisoners. (See also Comp. Laws of 1879, ch. 79, p. 593, §8.) It was not the duty, however, of the board of county commissioners of JSmith county, under said § 331 of the criminal code, to furnish medical attendance to the prisoners from Osborne county confined in the county jail of Smith county. Said § 331 does not provide for any such thing.
The ruling and judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, Jl:
On the first day of June, 1880, at 7:30 A. M., a chattel mortgage was duly executed and filed in the office of the register of deeds. One Mrs. M. M. Whitted was the mortgagor, and plaintiffs in error were the mortgagees. Judgments having been rendered against the mortgagor, executions thereon were placed in the hands of Car.- Crawford, one of the defendants in error, a constable, and by him, on June 1, 1881, at six o’clock p. M., levied upon the mortgaged goods. On June 4,1881, the mortgagees replevied the goods. Up to that time no affidavit for the renewal of the mortgage had been made or filed, as required by §11, ch. 68, Comp. Laws 1879. The district court held the lien of the executions prior to that of the mortgage, and of this plaintiffs in error complain.
Defendants in error insist that the ruling of the district court must be sustained upon two grounds:
1. That the year provided by said §11 for'the renewal of the mortgage expired at 7:30 A.- m., of June 1, 1881, and thereafter the property was subject to seizure upon process against the mortgagor.
'2. That inasmuch as no affidavit in renewal had been filed prior to June 4, 1881, the date of commencing this replevin action, the lien of the mortgage was postponed to the lien of the executions.
Plaintiffs in error claim that they had all of June 1,1881, in which to file their affidavit for renewal; that although the mortgage was filed at 7:30 a.'m., yet under our statutes providing rules for the computation of time, the courts will not take note of fractions of a day, but will give the whole of the last day for the doing of any act required to be done on that day; and cite in support thereof several decisions in this court.
In support of defendants’ first proposition, that the exact hour is to be taken into account, they cite the case of Seaman v. Eager, 16 Ohio St. 210, in which the precise question was considered and determined. See also Nitchie v. Townsend, 2 Sandf. S. C. 299; Follett v. Hall, 16 Ohio, 111; Paine v. Mason, 7 Ohio St. 198; Herman on Chattel Mortgages, 188; Bank v. Burkhardt, 100 U. S. 686. We think this proposi tion is correct, and that therefore the judgment of the district court must be affirmed. We cannot state the reasons for this conclusion any better than by a quotation from the opinion in 16 Ohio St., supra:
“But it is claimed that this mortgage having been refiled on the 29th day of July, 1861, at half-past eight o’clock a..m,, one year from that time did not expire till the close of the 29th day of July, 1862; and this claim rests on the alleged ground that the law does not regard fractions of a day in computations of time, and that the day of the filing is to be excluded from the reckoning in computing the year. In cases where fractions of a day are to be disregarded, the general rule certainly is,, that in computing time from an act done, the day on which it was performed is excluded from the reckoning; but this statute, as we think, requires that fractions of a day shall not be disregarded in computations of time running from the act of filing. The statute requires the township clerk to indorse on the instrument deposited with, him 'the time of receiving it.’ The moment it is filed in the proper office it becomes effective, and will have priority over a competing inátrument of the same kind filed one minute afterward. The law will take notice of the exact time at which each is filed, and therefore requires that time to be indorsed by the clerk; and the time within which it must be again filed is 'one year from the filing thereof,’ not from the day of filing, but from the time when the act of filing occurs. We are of opinion that the year begins to run, not from the close of the day on which the filing takes place, but from the time of the act of filing, and is completed at the corresponding time in the year next following.”
Upon the other proposition of counsel, see, on the one hand, Thompson v. VanVechten, 27 N. Y. 568, 581; and on the other, Newman v. Tymeson, 12 Wis. 448; Case v. Jewett, 13 Wis. 498; Edson v. Newell, 14 Minn. 228.
The judgment will be affirmed.
All the Justices concurring. | [
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Per Ouriam:
This case involves the question as to whether a judgment against a deceased person can be revived against his widow and heirs, without their consent, unless the same, is done within one year after the order of revivor could, have been first made. This question must be answered in the negative. (Civil Code, §§433, 439; Scroggs v. Tutt, 23 Kas. 182; Angell v. Martin, 24 Kas. 334; Kothman v. Skaggs, just decided.)
The judgment of the court below will be reversed. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Sedgwick county, to recover a balance claimed to be due upon ,the sale of certain mining properties. The undisputed facts are, that plaintiff sold to defendant a one-twelfth interest in two mines in Colorado for $1,000, one-half of which was paid down, and the balance, according to the plaintiff, to be paid when the defendant made it out of the property sold to-him, and according to the defendant, not until it was realized out of mineral taken out of the mining property sold. Without ever having taken any mineral out of the mines, the defendant sold the entire interest purchased from plaintiff, and by such sale received the full sum of $1,000 cash, and a contingent promise of more. The substantial question is, whether if the defendant’s version of the contract be correct, he is liable to the plaintiff for the unpaid balance of the purchase-price. In respect to this the district court charged as follows:
“The defendant claims that the last payment of $500 of the purchase-price of the property sold to him,, was not to be made until it was realized out of the mineral taken out of the mining property sold to him, and his evidence tends to show that such was the contract. If you find that such was the contract between the parties, then the plaintiff cannot recover.”
In other words, the court-ruled-that as the condition had not been technically and literally complied with, as the defendant had never received anything from mineral taken out of the mine, he was under no liability to plaintiff. In this-it enforced the contract by the letter, and ignored the fact that performance of the condition had been rendered impossible by the act of the defendant. In this the court erred. By selling the interest he had purchased, he, holding no other interest in the mine and having no control or right to work it, disabled himself from ever complying with this condition. The moment he did this, his conditional liability on the contract for the unpaid purchase-money became absolute, and such purchase-money became presently due. This is upon the well-settled principle that.a party to a contract, who by his own act prevents the happening of a condition, is estopped thereafter to say that such condition has not happened. No party to a contract can interfere to prevent the performance of any condition, and then claim any benefit or escape any liability from the failure of such performance. “In all cases whatever, a promisor will be discharged from all liability when the non-performance of his obligation is caused by the act or the fault of the other contracting party.” (2 Parsons on Contracts, 5th ed., p. 676, and cases in note.) And again, on page 678, the author states: 0“And generally when one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as rescinded.” See also cases cited in not<2 Authorities might be multiplied indefinitely upon these propositions, but the rule is clear and well settled, and founded in absolute justice, that no party to a contract can either prevent performance by another-of any of its conditions, or, on the other hand, disable himself from complying with any condition, and derive any benefit or escape any liability thereby. We think, therefore, that the district court erred. The moment the defendant sold, receiving on such sale enough to cover the amount he had promised to pay, and by such sale disabled himself from ever realizing anything from the mineral taken out of the mine, that moment he waived the condition, and became instantly and absolutely liable to the plaintiff for the unpaid purchase-money. But, say counsel for defendant in error, the court in this instruction did not state the contract exactly as defendant’s testimo'ny disclosed it to have been. That testimony was not that Pope was to take the mineral out of the mine, but that Dill himself was to do it. The exact language, as stated by the witness, is: “I will let you have one-twelfth interest for $1,000. You pay me $500 down, and I will take the balance in mineral out of the mine. It is there, I know it is rich, and have no doubt but that I can get it out. He said he would take the $500 in mineral out of the mine himself.” We do not think this is enough to change the decision in the case, or to modify the propositions above stated. Pope, by selling, prevented anything being realized out of the mineral taken out of the mine, as against him. Dill had no lien upon Pope’s interest for the unpaid purchase-money; and after Pope sold the proceeds of any mineral taken out of the mine, and belonging to that one-twelfth interest, they would go to the purchaser from Pope, and could not be applied by Dill in satisfaction of the unpaid purchase-money. So that whether Dill or Pope was to do the work of taking the mineral out of the mine, was really immaterial. In either event, the contract contemplated that the mineral was to be the proceeds of Pope’s interest in the mine, and when he sold, he either prevented Dill or disabled himself from realizing anything out of the proceeds of that interest. Whether the court erred or not in ruling out the testimony offered by defendant, it is probably unnecessary now to determine. We do not feel warranted in assuming that the testimony offered would have proved the fact alleged. The effect of such a fact, if true and proven in the subsequent trial, may then be considered.
The judgment of the district court will be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Valentine, J.:
W. J. Wilson commenced two actions in the district court of Harvey county, against J. W. Lightbody and James McGee. The first action was brought on February 9, 1882, to recover the sum of $5,371, and the second action was brought on February 14,1882, to recover the sum $2,687. In each of these actions an order of attachment was obtained. In the first case the order of attachment was issued upon the following grounds, to wit:
“ That said defendants are about to remove their property or a part thereof out of the jurisdiction of the court, with the intent to defraud their creditors; and are about to convert their property or a part thereof into money, for the purpose of placing it beyond the reach of their creditors; and have property and rights in action which they conceal; and have assigned, removed or-disposed of, and are about to dispose of their property or a part thereof, with the intent to defraud, hinder or delay their creditors.”
In the second case, the order of attachment was issued upon substantially the same grounds as was the attachment in the first case, except that in the second case McGee was not charged with committing any wrong, and no attachment was asked for against him. These orders of attachment were levied upon a certain stock of goods situated in the city of Newton, Harvey county, Kansas. Afterward, the defendants filed motions in both of these cases to vacate these attachments, upon the ground that the matters and things set forth in the plaintiff’s affidavits for the attachments were untrue and false. The defendants also filed affidavits denying the truth of all the grounds set forth in the plaintiff’s affidavits for the attachments. Both these motions to vacate the attachments were heard by the court at the same time. Both parties introduced evidence, and the evidence was nearly all in parol. Upon this evidence the court made a general finding in each case in favor of the defendants and against the plaintiff,-and sustained the motions of the defendants and dissolved the attachments. From these orders dissolving the attachments the plaintiff now appeals to this court, bringing the two cases to this court on petition in error.
It appears from the evidence in these cases that the property levied on was originally the property of the defendant J. Wesley Lightbody, but that oil the 8th day of February, 1882, he sold the same to J. Gerson & Co.; and the only question presented to the court below upon the evidence was whether this sale by Lightbody to J. Gerson & Co. was made in good faith, or was made for the purpose of hindering, delaying or defrauding the creditors of Lightbody. It appears that nearly all the parties are related to each other, and have had various dealings with each other for several years. Wilson and Lightbody are brothers-in-law; but in just what way they are brothers-in-law the evidence does not show. Lightbody and McGee are also brothers-in-law, and Light-body’s wife is a sister of McGee; and the firm of J. Gerson & Co. is composed of J. Gerson and Mrs. Lightbody, the wife of J. Wesley Lightbody. The stock of goods at their invoice prices amounted to about $17,000, and they were sold by Lightbody to J. Gerson & Co. for $11,052.50, or about 65 per cent, of their invoice price. It was admitted by the plaintiff on the trial, that this was a fair price for. the goods. Gerson, on his own account and as his part of the purchase-money,, paid $552.50 in cash and $4,500 in notes. These notes were placed in the hands of a trustee to be collected, and the proceeds thereof to be used in the payment of the claims of certain creditors of Lightbody. Mrs. Lightbody, on her part, assumed the payment of a debt of $4,000 which Lightbody owed to Mrs. McGee, and gave a credit to Light-body of $2,000 on a debt which Lightbody owed to herself; and she probably also became security for Lightbody on some of the other debts which Lightbody owed.
Now these transactions look very .suspicious, and we can hardly feel that they could have been consummated in the utmost good faith; and yet the evidence does not so clearly show that they were consummated in bad faith that we can say as a matter of law that they were not consummated in good faith. The entire transactions were stated in detail by the several witnesses in their oral testimony; all the parties to the two suits testified orally before the court, and so also did their clerks, and Gerson, and several other persons; and the books and papers with reference to the transactions were also before the court: and yet, after the court had heard and seen all this evidence, it found in effect that all the transactions with reference to the sale of said goods and their trans fér from Lightbody to Gerson & Co. were had in good faith, and not for the purpose of hindering, delaying or defrauding any of the creditors of J. Wesley Lightbody. The court below saw Wilson and Lightbody and McGee and Gerson, and heard them all testify, and also saw the various other witnesses, and heard them testify, and could tell much better than we can which of the witnesses to believe and which not to believe; and therefore we must take the facts as they were found by the court below. We cannot say as a matter of law that the facts as thus found were not true; and we cannot say from the facts as thus found that said sale as a matter of law was fraudulent and void. It certainly was not shown that the debts from Lightbody to Mrs. McGee and to Mrs. Lightbody were not honest and bona fide debts, but rather the reverse;' and considering the relations existing between the parties, we would suppose that if the debts were not honest debts that the plaintiff Wilson might have shown that they were dishonest — that they were mere shams'(if they were such), merely trumped-up claims (if they were such), to cover fraudulent transactions. But he did not show these things. Of course we must say that some of the transactions had in this case seem to us very suspicious; and yet we cannot say as a matter of law, and against the findings of the court below, that they were fraudulent and of no effect. Where a trial court hears a motion to dissolve an attachment upon oral evidence, and upon such evidence makes a finding in favor of one of the parties and against the other, this court cannot ignore such' finding nor reverse it, unless we can say as a matter of law that the finding is erroneous. If the evidence in such a case is conflicting and pretty evenly balanced, and sufficient evidence is introduced on each side of the case to sustain that side, provided the evidence on the other side be not considered, then the finding of the trial court is generally conclusive. In such a case we cannot retry the facts upon the evidence and determine upon which side the preponderance of the evidence exists. All that we can do is to look into the evidence to see whether there is sufficient ev idence to sustain every ingredient of the finding of the court; or, in other words, to see whether there is such lack of evidence that we can say as a matter of law that the finding is erroneous. In the present case, the evidence was such that a finding by the court below on either side would be upheld. As to conclusiveness of findings, see Gibbs v. Gibbs, 18 Kas. 419. As to the sale of property for the purpose of preferring creditors, see Campbell v. Warner, 22 Kas. 604.
Before closing this opinion we might say. that if the property of Lightbody was insufficient to pay all his debts, that it was probably not inequitable to prefer the claims of the other creditors before those of the plaintiff Wilson; for some of the evidence seems to show that in the various dealings had between Wilson and Lightbody, Wilson generally overreached Lightbody, and obtained more than- in strict equity and good conscience he was entitled to obtain; and although Wilson’s claims against Lightbody are legal and valid, yet probably in pure equity and justice there is less foundation for them than there is for those of any of the other claimants or creditors of Lightbody. We do not think that it is necessary to consider the evidence in this case in detail, nor to consider the various claims of the several parties in detail. We have-considered all the questions raised by counsel for plaintiff in error, and do not think that any of his claims are sufficient to authorize a reversal of the orders and judgments of the court below. We have considered the questions with respect to the statute of limitations, and with respect to fraud in the disposition of property and concealment of property, and all other questions presented by counsel for plaintiff in error, and consider them insufficient to authorize any reversal in this case. We think the testimony of McGee was admissible, and certainly it was not sufficiently Erroneous to authorize a reversal; his wife was not a party to the suit, and he did not testify for her or against her; ■ and he did not testify concerning any communication made by one to the other. Besides, agency may always be proved- by simply proving that the agent in fact acted as the agent of his principal with the principal’s knowledge. The judgments and orders of the court below in these two cases will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This proceeding is pending before us upon what purports to be a bill of exceptions and also a case-made. Neither is certified, nor attested, as required by statute. The record is also otherwise irregular and defective, and it is therefore impossible for us to consider and determine the various questions sought to be presented concerning the alleged errors of the trial court. (Karr v. Hudson, 19 Kas. 474.)
The judgment of the district court must therefore be affirmed. | [
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The opinion of the court was delivered by
Bjrewer, J.:
The defendants in error recovered a judgment against the plaintiff in error in the district court'of Miami county for the sum of $375.30, to review which judgment the plaintiff in error brings the record to this court. This is the fourth time that the controversy between these parties has in one shape or another come to this court, and as yet the ultimate rights of the parties have not been adjudicated. A brief history of the litigation will help in the solution of the questions involved in this action. In 1878, Campbell held title by a regular chain of conveyances from the government, óf lot 7, block 84, in the city of Paola. ■ Coonradt held a tax deed upon the same lot. It was vacant and unoccupied. Campbell took possession, and fenced it. Thereupon, Coonradt forcibly entered upon the property, dispossessed Campbell, and put up a small dwelling house. Campbell commenced proceedings in forcible entry and detainer before a justice of the peace, and obtained judgment for the restitution of the premises. Coonradt gave bond, and appealed the case to the district court. The trial was had in that court, and judgment rendered in favor of Coonradt. Campbell then brought the case to this court on error, and here the judgment was reversed, and the case remanded to the district court fo'r another trial. (22 Kas. 704.) Upon the second trial in the district court, Campbell obtained judgment of restitution, and Coonradt brought the case a second time to this court, staying all proceedings by a supersedeas bond. That judgment was affirmed. (25 Kas. 227.) After the first judgment in the dis trict court had been reversed by this court, Coonradt, fearing that he would finally be beaten in that action, undertook to remove the building and other improvements which he had placed upon the lot. Campbell obtained a temporary injunction- restraining any such removal. But upon the final trial this injunction was set aside by the district court, and judgment entered for the defendant. This judgment was affirmed by us, this court holding that the appeal bond given by Coonradt was sufficient protection to Campbell, and that therefore no resort to the equitable proceeding of injunction was necessary. (26 Kas. 67.) Prior however to this judgment, the proceedings in the forcible-entry-apd-detainer action had culminated in a writ of restitution, and Campbell had obtained possession of the property. Afterward, Coonradt commenced this action upon the injunction bond. Campbell answered, setting up a cause of action orí the appeal bond; and upon these respective causes of action the case was tried, resulting,as we have said, in a judgment in favor of Campbell. The case was tried by the court with a jury. Special questions were submitted to the jury, by the answers to which appears separately the amount found to be due to the plaintiff on account of the breach of the injunction bond, as well as the amount due to the defendant on account of the breach of the appeal bond. A large amount of testimony was introduced, much of which we think was irrelevant, but being admitted without objection, presents nothing for our consideration. Elaborate briefs have been filed by counsel, discussing several matters, but we think there are but two or three vital questions, the determination of which disposes of the case and avoids the necessity of referring to the others.
The first is as to the measure of damages on the injunction bond. So far as respects the fees and expenses incurred in obtaining a dissolution of the injunction, it is conceded that they were recoverable. So the court instructed, and the jury found the amount. But plaintiff claims that in addition he is entitled to recover the value of the building and improvements which he put upon the premises, and which by the in junction he was prevented from removing. It appears that since Campbell obtained restitution he has sold the property, and delivered possession to a third party. Now the argument of plaintiff is, that his money put these improvements upon the premises; that equitably they were his, but by the injunction he was prevented from taking possession of them and removing them from the lot; and that Campbell has since sold and converted them to his own use. Authorities are cited to show that in estimating damages sustained by the improper issue of an injunction the courts proceed upon equitable grounds, and it is contended that equitably Coonradt is entitled to recover of Campbell the value of such improvements. We think it clearly appears that the improvements were so placed upon the ground as to become a part of the realty. The building was a dwelling-house placed upon stone foundations,^ so placed by one claiming to be the owner. They constitute a part of the realty, and go with the ground itself to him who shall finally be adjudged the owner of such ground. Now that ownership has not yet been adjudicated. Coonradt holds a tax deed. He may yet bring an action in ejectment, and in such action his title by tax deed may be adjudged good, and then he will take the lot with all the improvements; and it surely would be inequitable to permit him now to recover the value of the improvements when hereafter he may recover the improvements themselves. The dissolution of the injunction was sustained, “not on the ground that Coonradt equitably owned the improvements, and therefore had a right to remove them, but solely on the ground that Campbell had sufficient protection in the obligations of the appeal bond. Until it is finally adjudged that Coonradt is not the owner of the lot, it cannot be held that he has suffered damages in the value of the improvements by being restrained from removing them. We do not wish to be understood as intimating in this, that if in some subsequent action in which the question is properly in issue, Coonradt’s title shall be adjudged invalid, he can then maintain a further action, to recover the value of these improvements. It may be that his own mis conduct will even then prove a bar to any relief. We do not decide that question, however, but leave it entirely open, and only say this to guard against any possible misapprehension. All we decide at present is, that with the question of title undetermined, Coonradt is not entitled to recover the value of the improvements in this action on the injunction bond.
Now on the other hand, what damages was Campbell entitled to recover on the appeal bond? That bond was conditioned as follows: “And if upon further trial of the case judgment be rendered against him, he will pay double the value of the use and occupancy of the said lot from the date of this undertaking until the delivery of the property pursuant to the judgment.” Upon this, plaintiff makes two points. First, this bond it will be perceived is conditioned to pay double the value of the use. After the second trial in the district court Coonradt took the case up on error, and stayed proceedings by an ordinary supersedeas bond. Now it is contended that this supersedeas bond did away with and took the place of the appeal bond; that under it there was only single, and not double liability, and that therefore, while it was in force, Campbell was entitled to recover only the actual rental value, and not double that amount. This is a mistake. The appeal bond continued in force from the time it was given until the property was restored under the final judgment. The supersedeas bond was only additional security, having in no manner set aside the obligations of the appeal bond. It was entirely optional with Coonradt whether he took the judgment against him in the district court up to this for review, and entirely optional whether if he did' take it up he should stay the enforcement of that judgment by a supersedeas. His election to continue the litigation further and to stay proceedings in no manner released him from the liabilities assumed by this appeal bond. Second, there was testimony tending to show that the rental value of the lot without any improvements on it was little or nothing, while with the improvements it was from $7 to $10 a month. Now the plaintiff contends that the appeal bond in terms specifies the rental value of the lot, and that therefore, he is only liable for the rental value of the lot without any improvements; and further, that as the improvements were placed upon the lot by himself, he ought not to be compelled to pay anything on account of the additional rental value given to the premises by reason of such improvements. It may be remarked here, that the testimony shows that the improvements were all completed before the commencement of the action of forcible entry. The court instructed and the jury found in favor of Campbell the rental value of the property as it stood. This we think was right. The improvements, as we have seen, were a part of the realty; and where a tract of ground is described in a deed or other instrument, all is presumed to be included which is a part of that realty. The final judgment-in the action of forcible entry and detainer has settled the question of Campbell’s right to the possession of the property in the condition it was at the time he commenced the action; and Coonradt, having kept him out of the possession during the pendency of such action, is liable to him by the terms of his appeal bond in double the rental value. If this result bears hardly upon Coonradt, it is due to his own wrongful conduct in forcing an entrance into property fenced and in the possession of another.
These are the vital questions in the case. The ruling of the court in respect to them was right. The jury found specially upon them. There is no question but that their finding was correct upon the testimony. It is unnecessary to consider the other questions made by counsel, for, whether there -was any technical error or not in them, it1 would' not affect the determination of these vital matters. As to them the decision was right, and therefore the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action by Hall, Corning & Doane as plaintiffs, to recover of Gray $500 as damages for breach of contract in failing to deliver to plaintiffs a quantity of corn. The action was tried at the January term for 1882, by the court without a jury, and judgment rendered for the plaintiffs for $269.63. Gray excepted, and brings the case here.
Several errors are alleged, but many of them are so trifling that it is unnecessary to refer to them. We will notice those only which seem to demand attention. The petition alleged, inter alia, that the contract was agreed to on the 1st day of August, 1881; that the corn was to be delivered during' the month of August, 1881; that plaintiffs were to pay thirty-seven cents per bushel for the corn on the delivery thereof at their mill in the town of Lyons, in Rice county, in this state; that the defendant refused to comply with his contract, to the damage of the plaintiffs in the sum of $500. It was nowhere stated in the petition that the corn appreciated in value after the said August 1st over and above the price to be paid therefor. Counsel claims that on account of this omission, the petition was fatally defective, and the facts pleaded were not sufficient to sustain the allegation of damage, or authorize the reception of evidence to show the corn advanced in price after the said August 1st. None of these points is tenable. The petition alleging that the plaintiffs were damaged in the sum of $500 was good as against the general demurrer, and as no motion was filed to make the petition more specific or certain, the court properly received the evidence tending to show that plaintiffs were entitled to recover damages.
To recover more than nominal damages, it was necessary on the part of the plaintiffs to establish that the corn advanced in price after the contract — the general rule of damages ordinarily being the difference between the contract price and the market value of the article at the time and place of delivery fixed by the contract. If the defendant refused to comply with his contract, the natural, direct and proximate loss sustained by the plaintiffs was the difference between the price they agreed to pay for the corn and the market value thereof at the time and place fixed for its delivery. The allegation in the petition that plaintiffs were damaged in the sum of $500, gave the defendant information that the $500 was claimed for the natural, direct and. proximate loss to plaintiffs on account of the breach of the contract by the defendant,,and as this was the difference between the contract price of the corn and its market value at the time and place of delivery, therefore defendant was advised of the facts upon which damages were claimed against him. (Burrill v. Salt Co., 14 Mich. 34; Allison v. Chandler, 11 Mich. 542.) It appears from the evidence that while the contract was for the delivery of the corn in the month of August the defendant subsequently stated he would deliver it on the 17th of August. Afterward, it was agreed by the parties the corn should be received by plaintiffs on the 19th day of August; it rained on that day, and as the corn was not then delivered, one of the plain - tiffs went out to defendant's place on the evening of the 25th of August, and asked him when he was going to send the corn in. The defendant informed him that he was not going to deliver the corn; and while he admitted that the plaintiffs had bought the corn, he excused his conduct for refusing to comply with his contract by saying they had not paid him anything, and as corn had advanced he was not going to take the price agreed upon. It further appears that the price was not paid in advance. On the 25th day of August, 1881, according to some of the testimony, corn was worth in the market fifty-eight cents per bushel, and on the 26th, fifty-four and one half cents; therefore, the judgment of the court below is amply sustained by the evidence as to the measure of damages allowed. The general rule is, where payment and delivery are concurrent acts, and the vendor refuses to deliver, that the vendee is entitled to recover as damages the difference between the contract price and the market value -of the goods at the time and place appointed for delivery, and interest. (Stewart v. Power, 12 Kas. 596.)
Counsel, in referring to the evidence of Frank and Emma Gray, argue that the plaintiffs were only damaged to the extent of four cents per bushel on the corn which they had purchased, as these witnesses testified that Corning, one of the plaintiffs, admitted he had sold the corn at an advance of only four cents a bushel. Coming’s evidence was otherwise. The findings of the court must be taken as sustaining the testimony of Corning, and we must assume the facts to be as he testified.
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 was an action of slander, brought by plaintiff in error (plaintiff below) in the district court of Lyon county. A demurrer to the first and second counts of the petition was sustained, and this is the ruling now complained of. As the two counts are substantially alike, it will be sufficient to notice only the first. That is' as follows:
“That the defendant, prior to the commencement of this action, and at a time when the plaintiff was, as she now is, a married woman, as the defendant well knew, in a certain discourse which she, the defendant, had in the presence and hearing of divers persons, maliciously spoke and published of the plaintiff the false and malicious words following, that is to say: ‘I do not visit Mrs. Henicke (meaning the plaintiff), would be ashamed to be associated with her (meaning the plaintiff); Mrs. Henickekeeps that grocer man, Broadwell — he calls two or three times a day; she (meaning the plaintiff) thinks more of Broadwell than she does of her husband; Henicke (meaning the husband of the plaintiff) is a mere ornament which she keeps there for certain purposes; Broadwell remains in the house for hours when Henicke'(meaning the husband of the plaintiff) is away, alone with Mrs. Henicke’ (meaning the plaintiff), the defendant meaning by such false and malicious words, that the plaintiff was an unfaithful wife and an unchaste woman, and that she, the plaintiff, had been guilty of the crime of adultery. By means of the publishing of said false and malicious words the plaintiff is generally and greatly injured in her good name and reputation, and has been rendered liable to prosecution for adultery, to the damage of the plaintiff of $5,000.”
We think the court below erred in sustaining the demurrer. In Kansas, words charging adultery are actionable per se. Whatever may have been the rule at common law or in any other state, here, adultery is a crime punishable by imprisonment or fine, or both. (Comp. Laws 1879, p. 360, § 232.) Neither does it matter whether we accept the definition of slander laid down by Mr. Justice Spencer in Brooker v. Coffin, 5 Johns. 188, “that oral language is actionable per se, when it imputes a charge which, if true, will subject the party charged, to indictment for a crime involving moral turpitude, or subject him to an infamous punishment; ” or that laid down by Chief Justice Parker in Miller v. Parish, 8 Pick. 385, “that an accusation is actionable whenever an offense is charged which, if proved, may subject the party to a punishment, though not ignominious, and which brings disgrace upon him.” Under either rule, oral language charging adultery is actionable per se. The only real question, therefore, is, whether the words used impute the crime. Obviously they do not in terms charge it. The charge specifically is, that the plaintiff, a married woman, keeps a man other than her husband. This, by innuendo, plaintiff alleges, charges adultery. Now the office of the innuendo is to explain doubtful words or phrases, and annex to them their proper meaning. (Townshend on Slander and Libel, § 335, and cases cited in note; 12 Abb. U. S. Dig., 1st series, p. 510, ¶ 546, and cases cited.) The words charging that a married woman keeps some man other than her husband are, to say the least, of doubtful import; and whether they were spoken by the speaker and understood by the’ hearers as charging the crime of adultery, or a mere ordinary employment of help, is a question of fact to be settled by a jury. The innuendo alleges the former interpretation, and taking all the language charged to have been used by defendant, it cannot be held, as matter of law, that such an. interpretation must be rejected. It seems to us very probable that the language charged, taken as a whole, would be understood by an ordinary hearer as imputing the crime, and the innuendo in effect alleges that it was so used and understood. The pleading, therefore, presents a question of fact which cannot be disposed of by the court, but must be submitted to a jury to determine whether the crime was so intended and understood. Counsel for defendant contend that the words used must be so specific and certain that if the defendant would justify, she may prove the very fact charged. In a certain sense this claim of counsel is correct, and in another, not. If they mean to claim that the language on its face must be so specific and definite as necessarily to impute the crime, it is a mistake. Such a rule would permit a person to be guilty of that worst form of slander — the insinuating and indirect accusation of crime — without any responsibility for the wrong ■occasioned thereby. But if they mean that the words, as interpreted by the innuendo, must allege some definite offense, -they are correct, and these words as thus interpreted make such a direct charge. The defendant answering this petition may deny that the words as used were in fact intended or understood as charging adultery, or she may allege that the plaintiff is in fact guilty of the crime charged.
We conclude, therefore, that this count in the petition is sufficient, that the court erred in sustaining a demurrer to it, .and hence that the ruling must be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant was charged with selling intoxicating liquors, prohibited by the provisions of chap. 128, Laws of 1881, for other than medical, scientific and mechanical purposes. A motion was made to quash the information upon various grounds, among others, that no offense was charged therein. This motion was overruled, and duly excepted to. Upon calling the ease for trial, a jury was waived, and a hearing had upon the following: “Defendant admits that on the 15th day of August, 1881, he> sold spirituous liquors, to wit, whisky, for other than medical, mechanical or scientific purposes; that such sale was made at the county of Cherokee, in the state of Kansas, within a certain wooden building situated on lot No. 14, block No. 16, of the original ,plat of the city of Columbus, in said county. It is also admitted that said sale is the sale referred to in the sixth count of the information.” The court thereupon .found the defendant guilty as charged in the information, and adjudged that ■he pay a fine of $200, together with all costs, and stand committed to the, county jail until the fine and costs were paid. The defendant appeals, and alleges the conviction and judgment are wrong.
It is contended that the defendant is not charged with, or shown to have been guilty of, a violation .of any penal provision of the statute. In support, counsel for defendant suggest that if the defendant was a druggist upon the 15th day of August, 1881, having in his possession a permit to sell intoxicating liquors, and if the person to whom the defendant upon that day sold whisky was a druggist, armed with a perr mit, and if the sale was of at least one gallon in quantity, no statute was violated. This upon the theory that the concluding clause of § 4, ch. 128, Laws of 1881, authorizes any ■druggist having a permit to sell intoxicating liquors in quantities not less than one gallon to any other druggist having a like permit, for other than medical, scientific or mechanical purposes.
The argument is plausible, but not sound. Sec. 1 of said •ch. 128 reads: “Any person or persons who shall manufacture, sell or barter any malt, vinous or other intoxicating liquors, shall be guilty of a misdemeanor, and punished' as ¡hereinafter provided: Provided, however, That such liquors •may be sold for medical, scientific and mechanical purposes, as provided in this act.” Sec. 7 of the same act provides a penalty for any person who sells spirituous, malt, vinous, fermented or •other intoxicating liquors without taking out and having a permit to sell the same. Section 9 further provides penalties for all persons who, notwithstanding they have a permit to sell intoxicating liquors, sell or barter such liquors in any •othér manner, or for any other purpose, than in the statute provided, or who shall violate any of the provisions of the ¡statute. All of the sections of the statute müst <*be read and construed together, and therefore if the defendant sold the spirituous liquors as admitted by him, without having a permit therefor, he was liable to the penalty specified in § 7. Ifj having a permit as a druggist or otherwise, he sold intoxicating liquors at the time and place mentioned, for other than-medical, scientific or mechanical purposes, he was liable to the penalty mentioned in § 9. The purpose of the statute is, to prohibit the manufacture or sale of intoxicating liquors-for use as a beverage; and as it was alleged in the information that the sale was for other than medical, scientific and mechanical purposes, the information charged an offense within the statute, and as the defendant admitted that he sold1 intoxicating liquors at the time and place alleged in the information,' for other than medical, scientific and mechanical purposes, judgment was properly pronounced against him.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are as follows: On October 13, 1880, plaintiff in error, defendant below, executed a deed without covenants of warranty, to one ~W.. S. Thompson, of certain property in the town of Harper. The consideration named and in fact paid was $100. The deed contained this contract, that when the title to the property should be made complete by deed from the probate judge of Harper county, she would execute to said Thompson a warranty deed therefor. On November 5th, following, Thompson made a similar deed to the defendant in error. Neither of these deeds was recorded. Thereafter, on the 13th day of May, 1881, the plaintiff in error executed a warranty deed for the property to one F. A. Parsons, which deed was duly recorded; by reason whereof the title to the, property was vested in said Parsons and lost to the defendant in error. Thereupon he commenced this action of attachment, claiming to recover as damages the sum of $300. Judgment was rendered in his favor for $130.80 and costs, and defendant now alleges error.
Several questions are made by counsel in his brief. The first, as to the amendment of the affidavit for attachment, is disposed of by the case of Cassidy v. Fleak, 20 Kas. 54, which is a case directly in point. (See also Robinson v. Burton, 5 Kas. 293; Forman v. Carter, 9 Kas. 674.)
The second question' is as to the measure of damages. Plaintiff in error claims that it was only the. price paid and interest, while the court admitted testimony as to the value of the property at the time of the, deed, and rendered judgment for such value. The deed being without any covenants, and having been made at a time when the grantor had no title, it is claimed by counsel for plaintiff in error that the only cause of action is on the contract to execute a further conveyance. We shall assume this claim of counsel to be correct, and decide the case upon that theory. In breaches of contracts to convey real estate, a peculiar distinction as to the measure of damages runs through the cases, and that founded upon the motive with which the vendor acts. If he acts in good faith, it is held that the contract price becomes the measure of damages, while if he acts mala, fide, the vendee may recover the actual damages. In Field on the Law of Damages, § 48 5, the author says:
“The tendency of the decisions, both in England and in this country, where the vendor is guilty of fraud or acts in bad faith, is to hold him to a more extended liability, in case bf a breach of contract to convey; and the damages in such a case may embrace not only the amount of consideration paid, but the losses of a good bargain and such losses even as were contemplated by the parties at the time of the contract, as the probable result of a breach.”
And in support of that cites a large number of authorities. So also Sedgwick in his work on Damages, on page 209, after stating that the gen'eral rule in case of a breach of contract is, that in determining the amount of damages no regard can be paid to the motives which induced the violation of the contract, adds these words:
“T° this general rule, however, there undoubtedly exists an important exception, which has been introduced from the civil law, in regard to damages recoverable against a vendor of real estate, who fails to perform and convey the title. In these cases the line has been repeatedly drawn between parties acting in good faith and failing to perform because they could not make a title, and parties whose conduct is tainted with fraud or bad faith. In the former case, the plaintiff can only recover whatever money has been paid by him, with interest and expenses. In the latter, he is entitled to damages resulting from the loss of his bargain. This exception cannot, I think, be justified or explained on principle, but it is well settled in practice.”
We shall not attempt to review the authorities which are so fully discussed by the two authors quoted. It is enough for us to say that the doctrine seems to be clearly established, that it is founded in justice, and that it is in harmony with the general rules of the law, which aim to give to a party all the damages which' he has actually sustained. The case of Lister v. Batson, 6 Kas. 420, is cited by plaintiff in error as an authority to the contrary. But in that ease the vendor was not chargeable with bad faith, and while the language of the court in the opinion is general, it must be understood as having reference to the facts in that case. If it were an original question, we think that the doctrine announced in that case and the various cases which it follows, might well be criticised; for why should the good faith of the vendor diminish the actual damages which the vendee has sustained by reason of the breach of the contract? We do not, however, care to review the question decided in that case, but here simply hold that where' the vendor acts with bad faith, the vendee is entitled to recover all the actual damages he has sustained by reason of the breach.
Again, it is said that the evidence fails to show the happening of the condition upon which the vendor was to make the further conveyance. But inasmuch as the vendor has by ■her conveyance to Parsons disabled herself from complying with her contract, that is all that needs be shown. p It is the same as though the condition had been proved, as well as a refusal to convey. (Dill v. Pope, ante, p. 289.) The same fact also does away with the necessity of any demand. When a demand would avail nothing, it is useless to make it. Lex neminem cogit ad vana. (Abels v. Glover, 15 La. An. 249; Wilstach v. Hawkins, 14 Ind. 541.)
Only one other question requires notice, and that is really the most difficult and embarrassing in the case. Under the allegations of the petition and the testimony, does the plaintiff appear to be the real party in interest, and entitled to recover from the defendant? The petition sets up the two conveyances from defendant to Thompson, and from Thompson to plaintiff, and alleges that Thompson took the title in trust for plaintiff. The testimony simply shows that the amount of the consideration of the deed from defendant was paid by plaintiff. It fails to show under what arrangement or for what reason the conveyance was made to Thompson. No formal assignment from Thompson to plaintiff appears, the only transfer being the deed from Thompson, which was similar to the deed from defendant and containing a like agreement for a warranty deed. (Clippinger v. Tuller, 10 Kas. 377.) No testimony was offered by defendant. Of course if Thompson was simply an agent for plaintiff, and took the contract in his name but for the benefit of plaintiff, plaintiff as principal, though not named in the contract, could maintain an action thereon. (Railway Co. v. Thacher, 13 Kas. 564.) With some hesitation we are constrained to think that this principle is sufficient, notwithstanding the meager showing to sustain the plaintiff’s right of recovery. As he paid the money, it may be presumed that it was his money. He furnishing the consideration, prima facie the contract was for his benefit, and though taken in the name of a third party, was so taken in his name simply as agent or trustee for plaintiff. This presumption is strengthened by the trans fer made shortly thereafter by Thompson to him. There being nothing to contradict or weaken the force of these presumptions, it may fairly be held that the plaintiff was the party beneficially interested in the contract, and therefore the party having a right to maintain an action thereon.
We see nothing else in the record requiring special notice, and therefore the judgment will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the defendant in error, plaintiff below, to recover the value of a certain stock of goods claimed to have been taken and converted to his own use by defendant. Prior to May 2,1881, the goods belonged to and were in the possession of one J. L. Bowlden. On that day plaintiff claims to have purchased them. Thereafter the defendant, as sheriff of Butler county, seized them by virtue of a writ of attachment issued against said Bowlden. Therefore the question in the case was, whether the goods at the time of the levy by the sheriff were the property of said Bowl-den; and this depends on the further question whether the sale to plaintiff was valid, or not. The dealings with Bowlden were had by Edwin Hill, the husband of plaintiff, who she claimed was acting as her agent. With this general statement of the case, we pass to the consideration of the particular questions presented. The action was tried before á jury, and at its close defendant claimed the right to argue the questions of fact to the jury, but the court refused to permit any argument. This ruling is alleged as the principal ground for reversal. The court in its instructions submitted to the jury a question of fact in these words: “If you find from the evidence that at the time of the conversion of the property the plaintiff was the owner of it, it will be your duty to find a verdict in her favor for the value of the property.” Counsel insist that wherever a question of fact is submitted to a jury, counsel has a right to be heard in argument thereon; and while it is conceded that the court has a discretion in restricting the time to be occupied in such argument, claim that to refuse any argument is a denial of an absolute right, and manifest error. As a general proposition we think this is unquestionably true. A party to a law suit has a right to be heard, not merely in the testimony of his witnesses, but also in the.arguments of his counsel. It matters not how weak and inconclusive his testimony may be, if it is enough to present a disputed question of fact upon which he is entitled to a verdiet of the jury, he has a right to present in the arguments of his counsel his view of the case. This is no matter of discretion on the part of the court, but an absolute right of the party. Courts doubtless may prevent their time from being unnecessarily occupied by prolix arguments, and so may limit the time which counsel shall occupy. And if the restriction is a reasonable one in view of the questions involved, and the testimony presented, there will be no error. (The State v. Riddle, 20 Kas. 716.) But limiting the time of an argument and refusing to permit any argument at all, are entirely different matters. The one is the exercise of a discretion, the other is a denial of a right. (Weeks on Attorneys at Law, pp. 209, 213, §§110, 115; Proffatt on Jury Trials, §248; Garrison v. Wilcoxson, 11 Ga. 154; People v. Keenan, 13 Cal. 581; Commonwealth v. Porter, 10 Metc. 263; Commonwealth v. Austin, 7 Gray, 51; Wilkins v. Anderson, 11 Pa. St. 399; Dobbins v. Oswalt, 20 Ark. 619; Tobin v. Jenkins, 29 id. 151; Brooks v. Perry, 23 id. 32; Bertrand v. Taylor, 32 id. 470; Cory v. Silcox, 5 Ind. 370; State v. Page, 21 Mo. 257; Freligh v. Ames, 31 id. 253; Trice v. Rld. Co. 35 id. 416; Bierson v. Mahoney, 6 Baxter [Tenn.], 304; Coldwell v. Brower, 75 Ill. 516; Slate Co. v. Meyer, 8 Daly, 61; Millard v. Thorne, 56 N. Y. 402.)
Not seriously disputing this proposition, counsel for defendant in error insists that when there is no evidence in the ■case, legally sufficient, from which a jury could legitimately find a verdict in favor of a party, the court may properly refuse any argument in behalf of such party to the jury, ■(Bankard v. Rld. Co., 34 Md. 197,) and claims that here the testimony was all one way, and necessarily compelled the verdict which was in fact returned. It is common and correct practice to direct a jury to return a verdict in favor of a party when there is no testimony legally sufficient to justify a verdict against him. And in such cases it would be folly to permit argument for or against such direction. The counsel is doubtless right in this, and therefore we are, compelled to examine the evidence. Yet as the court submitted a question of' fact to the jury, we should presume that there was a question of fact to be determined by them. The court did not direct a verdict for the plaintiff, as it might and perhaps ought to have done, if the testimony compelled such a verdict. The action of the court is therefore against the claim of the counsel. Turning to the evidence, and considering only that which the court permitted to go to the jury, we must say that probably counsel’s position is well taken. The court really permitted very little testimony to go to the jury. Objections were sustained to about every other question asked, and even of that testimony which was at first admitted, much was thereafter stricken out. So the counsel is doubtless correct in saying that upon the evidence admitted the jury ought not to have found other than as they did. But we are constrained to think that there was error in rejecting and ruling out testimony. ■ We think the court unnecessarily and improperly circumscribed the' limits of the inquiry. We shall not attempt to notice in detail the various rulings made thereon, but shall content ourselves with stating in a general way what testimony was competent, and to what limits the inquiry should have been permitted. As heretofore stated, the negotiations with Bowlden were personally conducted by the husband of plaintiff. She testified that she had money of her own which she received from England ; that she turned it over to her husband, who loaned and managed it as her agent. The bill of sale from Bowlden was to her; prior notes and mortgages also ran to her. Now whether she could testify as to what she said to her husband, or to what her husband said to her, or as to any communications between them, here was enough and competent testimony to show prima facie that he was acting as her agent. Therefore he was a competent witness to testify as to all the dealings and transactions with Bowlden in respect to the loaning of money and the purchase of the goods.
•Again, where a purchase like this is charged to have been made in bad faith, and. with a fraudulent intent as against creditors, a large latitude of inquiry should be permitted as to the circumstances surrounding the transaction, the conduct of the parties, before and after the alleged purchase, the actual consideration, and the means of the vendee; for only in that way can the fraud, if ,any thei;e be in the transaction, be exposed. . , ■ , '
Again, the value of the goods taken on the attachment and afterward sold by the officer is not determined solely by the appraisement. The amount received by the officer on sale is some evidence of value. (1 Phillips on Evidence, p. 785, note 4; Shattuck v. Rld. Co., 6 Allen, 115; Wyman v. Rld. Co., 13 Metc. 326.) So also the opinions of thohe who have been engaged in dealing in goods-of a similar nature, and testify that they are acquainted with the values thereof. We might mention other matters, but these are enough. In these respects as well as some others, we think the court improperly rejected testimony, and circumscribed within too narrow limits the scope of the inquiry. We think all the facts were not brought ■ out, and that the parties have not had a full and fair trial. Perhaps if all the circumstances ,of >the transaction and prior dealings between the parties had been fully developed, a more doubtful question of fact would have been presented, and one upon which the plaintiff in error would clearly have had a right to be heard by his counsel in argument. The case must therefore, be reversed, and remanded for a new trial.
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The opinion of the court was delivered by
Brewek, J.:
This was an action brought by defendant in error, plaintiff below, under §16, chapter 68, Comp. Laws 1879, to recover the penalty of $100 for failure to enter satisfaction of a chattel mortgage. The case was tried by the court, without a jury, and judgment entered in favor of plaintiff for $100 and costs. The defendants, as plaintiffs in error, now bring the case to this court for review. A reversal of the judgment is claimed on four-grounds.
I. It is insisted that the testimony fails to show that the mortgage was fully paid and (Satisfied. The facts are these: Plaintiff executed to the Citizens’ bank a chattel mortgage. The defendants, as assignees, brought an action to foreclose said mortgage, and obtained a judgment for over $900 and a decree of foreclosure. They failed, however, to get possession of the property. The parties then made a new agreement, by which • the mortgagor was to turn over to the defendants all the mortgaged property; that the same was to be sold, and the defendants were to take $500 in -full satisfaction of the note and mortgage. In pursuance of this, she did turn over to them all the property except one buggy. This property they sold, receiving $1,040 therefrom. While they were engaged in disposing of the property, they paid her $85. She brought an action against them to recover the surplus portion of the proceeds of the sales. While this action was pending, she demanded satisfaction of the mortgage. They offered to give her $4.50 and enter satisfaction, if she would dismiss such suit, but refused to enter satisfaction otherwise. She did not pretend to testify as to the costs and expenses incurred in making the sales. The only defendant who testified, said he did not know how much these costs and expenses were, and could not tell without an examination of his books. In short, there was no testimony as to the' amount of costs and expenses. Now counsel argue that the defendants were entitled to receive $500 over and above the costs and expenses, and those costs and expenses being still an unknown quantity, it cannot be said that it was proved that the mortgage was fully paid and satisfied. On the other hand, plaintiff contends that defendants were themselves to pay ajl the costs and expenses, and to receive only $500 in gross in full satisfaction of the note and mortgage. We think it fair to say from the testimony, that the defendants were to receive $500 net, and over and above all the expenses of the sale. But still we think it equally fair to hold that the testimony showed that the mortgage debt, even with that construction of the contract, had been fully paid and satisfied, or at least that there was enough evidence to sustain, the finding of payment. The amount received on the sales was $1,040 — $540 in excess of the amount to be received by the defendants.. This is a circumstance of no inconsiderable weight. They paid her $85, pending the sales, and finally offered to give her $4.50 and enter satisfaction, if she would dismiss the cases against them. With all this testimony and nothing contrary to lessen its full force, we think that in a civil action the finding of the court that the mortgage debt was fully paid was amply sustained.
II. It is insisted that the action cannot be sustained, because the plaintiff did not tender a satisfaction-piece already prepared for execution by the defendants, or tender the fees of the register for entering satisfaction. We think this claim also is not sustainable. It may be a question under the statute, whether the mortgagor is bound to prepare a satisfaction-piece, or tender the register fees. But even if as a general rule he is, the defendants waived their right to insist upon this, by placing their refusal to enter satisfaction upon other and different grounds. If they had simply declined to enter satisfaction without giving any reason therefor, then doubtless the question would be fairly before us as to which party must bear the expense of the satisfaction. But when they said nothing about the expense, placed their refusal upon one distinct ground, and proffered to enter satisfaction if that objection was removed, we think they cannot now be heard to say that there were other preliminary matters upon which they might have insisted.
III. Counsel insist that the plaintiff is not the party entitled to the benefit of this statute; and this question involves the construction of the language of the statute. It is insisted that the right to the penalty follows the property, and is not a personal right of the mortgagor; that the purpose of the statute is to remove clouds from the title to property, and not to furnish proof of the mortgagor’s solvency by record evidence of the payment of his debts. To determine this question we must look at the statute. Sec. 16, upon which this action is based, reads as follows:
“When any mortgage of personal property shall have been fully paid or satisfied, it shall be the duty of the mortgagee, his assignee or personal representative, to enter satisfaction or caufce satisfaction thereof to be entered of record, in the same manner, as near as may be, and under the same penalty, for a neglect or refusal, as provided in case of the satisfaction of mortgages of real estate.”
This section refers us to § 8 of the same statute, which reads as follows:
“ When any mortgage of real property shall have been satisfied, it shall be the duty of the mortgagee or his assignee, immediately on demand of the mortgagor, to enter satisfaction, or cause satisfaction of such mortgage to be entered, of record; and any mortgagee, or assignee of such mortgage, who shall neglect or refuse to enter satisfaction of such mortgage, as is provided by this act, shall be liable in damages to such mortgagor, or his grantee or heirs, in the sum of $100, to be recovered in a civil action before any court of competent jurisdiction.”
By this it appears that the penalty goes to the mortgagor, or his grantee or heirs. It could not go to the grantee if it was a purely personal right of the mortgagor and was not a right running with the land. If it is a right running with the land, the purpose of the statute is obviously a protection to the land, and not the securing of a personal right of the mortgagor. In other words, the purpose of the statute is, as claimed by counsel for plaintiffs in error, to remove all clouds from the title of real estate, and not simply to furnish record evidence of the mortgagor’s solvency, by proof that he has paid the particular debt secured. As against this, counsel for defendant in error cite the case óf Deeter v. Crosly, 26 Iowa, 180, in which the supreme court of Iowa, by Chief Justice Dillon, uses this language:
• “The object of the statute is obvious. The record of the mortgage is constructive notice to the world of the existence of the debt and incumbrance. When -this is paid, the statute has provided for a satisfaction on the record, so that the world may also know the fact of payment. Unsatisfied mortgages of record tend to affect the pecuniary standing and credit of the mortgagor in business circles.”
But this language is based upon the Iowa statute, (Eevised Statutes of Iowa, § 3670,) which gives the right to the penalty solely to the mortgagor. We quote the lasf clause: “If he fails to do so within six months after being requested, he shall forfeit to' the mortgagor the sum of $25.” If the mortgagor is the party alone entitled to recover the penalty, his rights are of course the only ones intended to be secured, by the statute; and in support of such a statute, the reasons given by Judge Dillon as above are entirely satisfactory. But when our legislature gives the right to the mortgagor, or his grantee, it seems to us that it intended, primarily, protection to the real estate and the clearing of the record of any incumbrances thereon. But, say counsel further, while this is the language of the section concerning real estate, § 16, concerning personal estate, contains no such language. But § 16 does not in terms say who is entitled to recover the penalty. It simply says that the defaulting mortgagee “shall be liable in the same manner, as near as may be, and under the same penalty” as in like defaulting mortgagee of real estate. We think this prescribes something more than the mere amount of the penalty. . It indicates the circumstances under which the penalty is recoverable, and the party by whom it may be recovered. We therefore think a fair constructions of both sections is, that the penalty follows the property, and is recoverable by the owner thereof.
IV. But further, it appears from the testimony'that only part of the mortgaged property was turned over to the mortgagees, and by them sold, A part remained with the mortgagor, and was unsold. Hence, contend counsel for defendant in error, that, conceding that the, right to the penalty runs with the property, the mortgagor remaining the owner of part of the property is, at least jointly with the purchasers of the other part of the property, entitled to recover the penalty; and no defect of parties plaintiff having been suggested by either demurrer or answer, the same, under § 91 of the code, was waived. We think this answer satisfactory. As a part of the property was not sold, the right to the penalty was a joint right of the mortgagor, and the purchasers of the mortgaged property. If other parties should have been united with her as plaintiff, the defendants should have raised the question by demurrer or answer. Failing to do that, they waive the question, and rest their defense upon the simple right of recovery. At least, this is true where the action is commenced in the district court. The rule may be different where, as here, the action is commenced before a justice of the peace and no bill of particulars is filed by or demanded of the defendant. (German v. Ritchie, 9 Kas. 106; Sanford v. Shepard, 14 Kas. 228.)
V. Finally, it is insisted that the plaintiffs in error were not the mortgagees, but simply the assignees; that there is no allegation or proof that there was ever an assignment placed on record; that therefore a satisfaction by the defendants would prima faeie be irrelevant, and no release of the mortgage; that apparently it would be nothing but the impertinent interference of a stranger, and that unless it is shown that some assignment is recorded, something which vests the record title in the defendants, they cannot be held responsible for a failure to enter satisfaction. And in support of this, Low v. Fox, 56 Iowa, 221, is cited. We think this objection is good. The statute is a penal one. The object of the statute, as we have held in response to the argument of the defendant in error, is to clear the record title of the property. But to clear that record the parties satisfying must have record title. If not, ytheir release and satisfaction clears nothing. It is apparently an impertinent interference. We think before a penal statute can be enforced for the default of a party, it must appear, not merely that he has failed to act, but also that the act which he has failed to do would accomplish the purpose intended by the statute. A satisfaction of a record by a stranger to a record clears no title, gives no notice. It stands as before the attempted satisfaction — -a matter resting purely upon parol testimony. We think, therefore, on this ground that the district court erred in its judgment; and for this error the judgm'ent must be reversed, and the case remanded for a new trial, and it is so ordered.
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