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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a sum of money which defendant had assumed and agreed to pay as part consideration for certain mortgaged lands conveyed to him in an exchange of properties and incidents pertaining thereto.
The transactions leading up to defendant’s alleged assumption of the obligation giving rise to this action were somewhat complicated, but may be thus summarized:
In 1924 one Thomas C. Howe made a contract of exchange of properties with this, defendant, Martin C. Keller, whereby Howe conveyed to Keller a, tract of 160 acres of Pottawatomie county land, and Keller conveyed to Howe a house and lots, a store building, and a stock of merchandize, all in the town of Lemoyne, Neb. Howe was also obligated to Keller in the sum of $7,500 as the agreed difference in the trading value of the exchanged properties. With the assistance of one William A. Hart, a merchant in Havensville, Howe paid $3,000 of this sum in cash, and the balance was to be paid in monthly installments of $150. One J. G. Hart, father of William A. Hart, was the real-estate dealer who negotiated the contract of exchange; and not long afterwards Hart opened further negotiations with Keller on Howe’s behalf to obtain relief from the burden of $150 per month which Howe had to pay to Keller. Hart represented that Howe could not pay that sum of money, but that he would convey to Keller in lieu thereof 640 acres of land in the state of Wyoming covered by a mortgage of $4,200 due in 1929, which mortgage was in favor of .one C.. E. Howe, brother of Thomas; and Thomas also proposed to give Keller his promissory note for $3,500 and secure it by a mortgage on the Nebraska real estate theretofore conveyed by Keller to him in the exchange of properties. Keller assented to this proposal, and the note and mortgage for $3,500 were accordingly executed by Thomas C. Howe to Keller, and Thomas also executed to Keller a warranty deed conveying the Wyoming land, “free from incumbrances except a mortgage of forty-two hundred dollars, which assignee assumes and agrees to pay.”
Later E. O. Howe, mortgagee of the'Wyoming land, traded or-sold that mortgage to this plaintiff, George Springer.
Thomas defaulted in the payment of his indebtedness to Keller and the latter foreclosed his mortgage on the Nebraska property, bought it in at the foreclosure sale, and now owns it. However, Keller on his part failed to pay the interest on the Wyoming mortgage according to the terms of the deed whereby he received a conveyance of that property. That default matured the entire indebtedness of $4,200, and plaintiff as assignee of C. E. Howe brought this action to recover on Keller’s assumed obligation.
Defendant pleaded various defenses — that he never accepted the deed to the Wyoming land; that plaintiff was not the owner of the note and mortgage covering the Wyoming land; that the signature of C. E. Howe assigning the note and mortgage was not genuine; that the plaintiff was merely a straw man for William A. Hart and J. G. Hart; and that J. G. Hart, acting for Thomas C. Howe, had made grossly false representations touching the value of the Wyoming land and its quality and adaptability for agriculture, on all of which defendant had relied; and that Hart had also represented that good title in fee simple would be vested in defendant, but that Thomas C. Howe, the patentee, had no such title to convey, since by the terms of the patent the government reserved certain mineral rights in the land and rights of way for irrigation ditches thereon.
Plaintiff filed an extended reply, which included an allegation that defendant Keller had authorized a Lemoyne banker to act for him in the transaction whereby the Wyoming land was conveyed to Keller, and that defendant had ratified the acts of this banker as his agent and had foreclosed the mortgage given by Thomas C. Howe on the Nebraska property, and by various other acts and conduct defendant was estopped to deny the validity of the obligation assumed by him in the deed to the Wyoming land.
Trial by the court; evidence of the parties presented; cause taken under advisement and judgment entered for plaintiff; motion for a new trial taken under advisement and overruled. One appeal was taken from the judgment, and another appeal from the deferred ruling on the motion for a new trial. These appeals have been consolidated and the case is here for review.
The first error assigned relates to the trial court’s refusal to permit defendant to amend his answer during the trial in order to make his pleadings conform to his evidence. That was a matter vested in the trial court’s discretion (Croner v. Keefer, 103 Kan. 204,173 Pac. 282), and here it is not shown that that discretion was abused. The trial was concluded on April 15, 1926, and the trial court’s decision announced on May 28. On the latter day the application to amend was filed. That was very late, and might well have been denied for that reason. However, the amendment which was sought to be made was immaterial as a factor in the defense to this action. The proposed amendment would have set out certain reservations made by the government in its patent of the lands to Thomas C. Howe which were conveyed to defendant subject to his assumption of the $4,200 mortgage indebtedness. Conceding, but not deciding, that those reservations reduced the title to something less than fee simple, that was no concern of this plaintiff unless it had been shown that he was privy to the contract in which defendant assumed to pay that $4,200 mortgage. Neither was it shown that such diminution of title resulted in any damage; and if such fact had been shown it could only have resulted in a set-off in some amount against the $4,200 obligation assumed by defendant.. It would not have defeated that obligation. (Burchfield v. Brinkman, 92 Kan. 377, 140 Pac. 894.) In 15 C. J. 1323, the rule is thus stated:
“When a deed passes an estate of value, although not that covenanted for, it is to be considered in measuring damages.”
Again, in 15 C. J. 1326 it is said:
“The general rule that only nominal damages are recoverable in actions for breach of a covenant where plaintiff has sustained no actual loss applies with reference to actions for breach of a covenant against encumbrances.” (See, also, 7 R.C.L. 1170, 1175, 1177.)
The second error assigned is based on the overruling of defendant’s motion for a new trial, in which it is urged that the decision was.not sustained by sufficient evidence. To support that contention defendant’s evidence touching the character of the Wyoming land is quoted, also its tillable acreage, its value, and the condition of the title. But as we have seen, if that had been a defense of any sort against this plaintiff, it could only have been as a matter of damages which might have been pleaded and proved as a set-off in reduction of plaintiff’s demand.
Defendant’s motion for a new trial was also predicated upon the exclusion of “appellant’s offer of testimony during the trial.” That, however, is unavailing, because the excluded testimony — whatever it was — was not produced in support of the motion for a new trial. (Civ. Code. § 307; R. S. 60-3004; Leach v. Urschel, 112 Kan. 629, syl. ¶ 9, 212 Pac. 111, Rooney v. McDermott, 121 Kan. 93, syl. ¶ 3, 241 Pac. 103.)
It is finally contended that the plaintiff's deposition “shows that he at no time had any interest whatever in this litigation.” That is not a fair statement of its contents. Plaintiff deposed that he did own the $4,200 note; that he and his brother exchanged some Dakota land for it and its security, and that he and his brother did so in reliance upon defendant’s financial responsibility. While plaintiff’s deposition averred that he had no interest “in this lawsuit at this time,” such time referred to the date of his deposition, September 28, 1926, four months after the judgment was entered; and the counter abstract shows that plaintiff’s want of interest at that time, although literally true, was of no consequence. He had simply assigned his interest in it on July 14, 1926, several weeks after the judgment had been entered. The civil code recognizes the right of a litigant to transfer his interest in an action during its pendency. (Civ. Code, § 39, R. S. 60-415.)
No material or prejudicial error in this record is disclosed and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In each of these actions the plaintiff is seeking to recover from each of the defendants twenty-five cents a bushel for wheat sold by each of them in violation of contracts entered into by them with the plaintiff, and to enjoin each of the defendants from •delivering any of the wheat grown by him to any party other than the plaintiff. Judgment was rendered in favor of each defendant on his demurrer to the petition of the plaintiff, who appeals in each •case.
The question presented is, Did each of the petitions state a cause ■of action against the defendant named therein? The petitions are .identical, on identical contracts; for that reason it is necessary to ■examine only one of them, the one in the action against H. L. Bridges. That petition alleged the incorporation of the plaintiff and the signing of a contract by which the defendant agreed with others—
“To organize an association without capital stock, under the laws of the state of Kansas, for the purposes of promoting, fostering and encouraging the business of marketing wheat cooperatively; for reducing speculation in wheat; for stabilizing the wheat markets; for cooperatively and collectively handling the problems of wheat growers; and for other pertinent purposes.”
The contract also provided that—
“(a) If by June 15, 1921, signature of wheat growers or persons eligible to-membership covering at least 51 million bushels of the 1921 crop shall not have been secured for this agreement, the organization committee shall so notify every subscriber at his address noted below, prior to July 1, 1921, and cancel his signature and the agreement signed by him. It is agreed that when 20’ million bushels of wheat has been signed by the membership to the organization committee the organization committee shall'proceed to organize the state board of 21 directors for the purpose of conducting organization and propaganda work.
“(b) If signatures of the growers of 51 million bushels shall be secured by the said date, June 15, 1921, then this agreement shall be binding upon all of the subscribers in all of its terms and there shall be no right' of withdrawal whatsoever. If the required signatures are secured by June 15, 1921, the contracts shall become effective at once, and the 1920 crop shall be handled in addition to the crops covered in the marketing agreement, upon notice by the association.
“(c) For all matters of production or signatures and for all statements of' facts in connection herewith, the written statement of the organization committee, signed by its chairman, shall be absolutely conclusive, with or without notice to the subscriber.”
A marketing agreement was also signed by which the defendant agreed to sell and deliver to the association all of the wheat produced by him during the years 1921,1922,1923,1924 and 1925, with an exception not here necessary to notice further. Subsequently, the. defendant signed an amendment to the marketing agreement which amendment contained the following provisions:
“Upon execution of contracts covering five million, bushels of wheat of the-1921 crop, estimated, this agreement shall become effective and the organization committee shall proceed to organize the association.
“This agreement shall apply to any wheat of the 1920 or 1921 crop on hand,, upon mailing notice of incorporation of the association, and free of lien; and any such wheat shall be marketed by the association in pools separate-from the 1921 crop.”
The allegations of the petition material for consideration at the-present time are:
“It was further agreed, between the parties hereto in said contract, that for all matters of production or signatures and for all statements of facts in connection with said contract that the written statement of the organization committee, signed by its chairman, should be absolutely conclusive with or without notice to the subscriber.
“It was decided in August, 1921, that the signatures of growers of wheat had been secured representing over five million bushels of wheat for the estimated production of the year 1921.”
The defendant contends that the provision of the contract, which provides that concerning the signatures and statements of fact connected with the contract the written statement of the organization committee shall be absolutely conclusive, is void, because it is against public policy in that it attempted to deprive the courts of jurisdiction in matters of dispute between the parties to the contract where those parties have an absolute right to resort to the courts.
In Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520, it was held that—
“A provision in a contract between a principal contractor and a subcontractor for the grading of a railroad that the work should be done under the supervision of the chief engineer of the former, who should make estimates as a basis for the payment of the work done, and that his decision as to all matters of dispute which arose between the parties should be final and conclusive, is valid; and the decision of such an umpire is •prima jade conclusive upon matters submitted to, and fairly and honestly decided by, him.
“If there be fraud or mistake so great and palpable as to imply bad faith, or the umpire fail fairly and honestly to perform the function assigned to him, his decision will have no binding force.” (Syl. H1Í 3, 4.)
To the same effect are Atchison v. Rackliffe, 78 Kan. 320, 96 Pac. 477; and Wilson v. Drainage District, 113 Kan. 82, 213 Pac. 635; 6 R. C. L. 962; and 9 C. J. 772.
It is not perceived wherein the agreement here under consideration differs from those mentioned in the authorities above cited. Each concerned controversies that might arise in the future and each agreed to abide by the decision of a named person. Here, the con- ■ tract concerned matters that must arise in the future and about which there might be a controversy. It was necessary for some person to determine whether or not the contract'had the required number of signatures before the organization could function. It was reasonable that the decision of this question be submitted by the signers of the contract to some person to' be determined for them. That was what was done. The contract is not void. The determination of the committee named can be impeached for fraud or other sufficient reasons.
The defendant argues that the petition does not allege that the committee in a writing signed by its chairman determined that the contract had the requisite number of signatures. This allegation of the petition might very properly have been framed in different language, but what was alleged was sufficient as against the demurrer thereto. If a more specific allegation had been desired, a motion to make more definite and certain should have been filed and called to the attention of the court.
In Balmer v. Long, 104 Kan. 408, 179 Pac. 371, the court said:
“As against a general demurrer — no motion having been filed to make definite and certain — a petition should be liberally construed.”
If the defendant desires to contest the fact that the contract had the required number of signatures, or if he desires to show that the conclusion of the committee was not reached in good faith, he can put either or both matters in issue by his answer and prove either one or both in defense. The petition stated a cause of action.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action brought in the district court of Reno county by Edward C. White against his father, George W. White, to recover judgment of absolute ownership of an undivided five-eighths interest in all the property of the defendant, both real and personal, and to have such interest adjudged a trust affecting all the property of the defendant, and a trustee appointed to administer the property for the use and benefit of plaintiff and defendant. The plaintiff had paid over to his father the sum of $1,000 on the day he became 21 years of age, and commenced working for him under an oral agreement by which for his continued services he was to have a one-fourth interest in the father’s property at the death of the father. This agreement was reduced to writing six or seven years later and the relation continued thereunder for nearly twenty years before this action was commenced. The answer admitted the execution of the contract, denied the breach thereof by the defendant, and prayed for a judgment upon a different construction thereof. The casé was tried by the court without a jury, and judgment was rendered in favor of the plaintiff for $13,400 in lieu of his claimed share or interest in the property of his father, that amount being composed of the sum of $1,000 invested with interest and $25 per month for the nearly twenty years, with interest. The trial court denied the right of the plaintiff to the one-fourth interest claimed by him as his earned interest in his father’s property, and also the one-half interest in trust as his share by inheritance. From this ruling the plaintiff appeals, and the defendant also appeals from the ruling of the court giving the plaintiff a judgment and lien for the specific amount in cash, instead of requiring plaintiff to take such amount in property, as it is claimed the contract provides.
Most of the evidence besides the contract itself was concerning the execution of deeds by the defendant and his wife, Georgia A. White, in 1921, when the defendant was very ill and not expected to live. They were made to the plaintiff and his sister, the only children of the defendant, giving the wife a life estate in three-fourths of the property, and were delivered to the wife, who died in March, 1925. After her death the defendant destroyed the deeds. The court declined to hear evidence as t'o the present value of the property and the details of expenses paid to each party and made no finding as to who was the cause of the breach or disagreement. The case hinges almost entirely upon the construction of the contract, prepared and written by the defendant in his own language and terms, which is as follows:
“This contract and agreement, made and entered into on this 23d day of May, 1906, by and between George W. White and Georgia A. White, his wife, as parties of the first part, and Edward C. White as partie of the second part, all being of legal age and sound mind, and citizens of Reno county, Kansas.
“We, as parties of the first part, does hereby agree to contract partie of the second part, and undivided one fourth of all our property both real estate and persinal that we own at the dait of this •intriment, together with one-fourth of all the increase or accumilation that we may accumilate, togher with Edward C. White’s work and all of the property.
“For a consideration of one thousand dollars cash in hand, and Edward C. Whites work from the time he become of age to the time of George W. Whites death, this one forth of the property and acumilation does not become a part of the estate but is Edward C. Whites property at the time of George W. Whites death, providing said Edward C. White remains with us and works with us harmoniesly until the death of George W. White, an at this time he may take his one forth of all the property by asuming one forth of all the indebtedness and divide it from the estate for the one thousand dollars and his work from the time he become of age to the time of George W. Whites death.
“After second partie has received one forth of all the entire wealth that he have contracted for, he shall also hold his legal birth rights in the estate of George W. White as the law provides.
“The second partie does also release all claims further than this against first parties, and also assumes one forth of the indebitness that is aginst their property at the time or dait of this contract which is to be paid of jointly, And if said second parties is unable to get along satisfactory until the death of said George W. White he may at any time quit with the first parties and draw twenty-five dolars per month for his survic from the time he become of age or the dait of this contract to the time he quits, with interest on the wages at eight per cent per annum, and also draw one thousand dollars with interest at eight per cent per annum from the time he become of age to the time he quits work, and this shall be all he gets for his labor from the time he began work to the time he quits. And in this event he shall not hold one forth of the property and one forth of the increas, but shall come in as a legal air and hold his legal rights only. In case Edward C. White should die faithfully performing his contract before said George W. White, then said Edward C. Whites widow or children shall draw one forth of the increas or accumilation and the one thousand dollars with interest at eight per cent per annum at his death for his famileys seport and education but they shall not draw the one forth that Edward S. White contracted for but it shall revert back to the first parties.
“In any case that this contract may be closed or carried out the parties must take their part in. property and not in cash, and assume their preportion of the indebtedness.
“The first and second parties may at any time thay see fit to sell any part of this property by agreeing to do so with one and nother can and this contract shall hold good on any thing they may invest in.
“The value of property at the dait of this contract is twenty five thousand dollars that this contract is entended to convey the one forth to E'dward C. White. This contract is not to go on record, on account of misterfying the tiles and hendering the selling or martgaging of said property, but to be hold by the parties concerned.
“This contract is not intended to convey any titles, but to agree to do so if said Edward C. White fulfills his part of said contract.
“George W. White.
“Georgia A. White.
“Edward C. White.”
The appellant denominates the joint venture in which the father and son were embarked under the terms of the above contract as a partnership, and the termination thereof by the theory and judgment of the trial court as a forfeiture of his one-fourth interest in the joint enterprise, and reminds us that'courts abhor forfeitures and never enforce them unless necessary to enforce the law or do justice between the parties. There is no question about the rule as to forfeitures, but is it a forfeiture which deprived the appellant of his one-fourth interest under the contract? Is it not rather a contingency or alternative provision in the contract itself? The fifth paragraph of the contract specifically stipulates for what might be very properly called compensation or liquidated damages if he is unable to get along satisfactorily. .
“Where parties, by agreement, fix the measure of recovery due from the one to the other, their agreement governs, and abstract principles of law relating to the measure of recovery when argeements are wanting are inapplicable.” (Henshaw v. Smith, 102 Kan. 599, syl. ¶5, 171 Pac. 616.)
The case just cited was quite like this one in many points. A tenant for over twenty years made permanent improvements upon the promise that if he had to move the owner would pay him for the improvements. The parties themselves have provided in their contract for the contingency of not getting along satisfactorily, and their arrangement or plan must be followed unless it is unconscionable. This same principle was fully discussed in a recent insurance case (Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933), where it was held the incontestable clause was not involved in the construe- t-ion of a separate and distinct suicide clause providing amount of payment in the happening of that contingency. So here, when it is concluded that they are unable to get along satisfactorily, then the fifth paragraph of the contract applies to the situation, and an amount easy of calculation takes the place of the one-fourth interest provided if the arrangement had continued to the death of the appellee. We think the trial court was right in so holding and finding there was due the appellant under the provision of the fifth paragraph $13,400 with interest, but we think the trial court erred in not giving force and effect to the entire provision made for such contingency. The remaining part of the provision is as much a part of the contract as that which could be calculated and reduced to dollars and cents. The return of the $1,000 with interest and the $25 per month with interest was a substitute for the one-fourth interest, but nothing more. The fifth paragraph, after outlining as to the return of the $1,000 and the payment of the $25 per month with interest, goes on to provide, in substance, that in this event he shall not hold one-fourth of the property and one-fourth of the increase, but shall come in as a legal heir and hold his legal rights. This is as much a part of what he was to get in case he was unable to get along satisfactorily as it is under the preceding paragraph in case he did get along all right until the death of the appellee.
We have answered one of the two arguments of the counsel for appellee on this subject by showing this provision is a part and portion of what is to be due appellant in case of the contingency. The other argument is that in the cases cited by appellee on this subject the sole and only compensation of the parties claiming property under such promises was the real property to be devised. In many cases their entire living expenses from the start were furnished. In others the only service or return intended to be given was affection and obedience. If we are right in concluding that the contract gives to the appellant the right of inheritance just the same under the provision for the contingency as under the preceding paragraph or the plan generally, there is an abundance of authorities enforcing such provisions when made by contract, either written or oral, after the death of the owner of the property, and preserving and protecting such interest prior to his death. The facts and circumstances in the case of Dillon v. Gray, 87 Kan. 129, 123 Pac. 878, are very similar to those in this case, and the court enforced the contract- even against the claims of a second wife. See, also, Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; Taylor v. Taylor, 79 Kan. 161, 99 Pac. 814; Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743. The courts will protect such rights by injunction or otherwise in the lifetime of the owner, if there is danger of the property being disposed of or conveyed.
“A son who has supported his father for a number of years under an agreement that he is to become at once- the owner of a tract of land, and that the legal title is to be vested in him at his father’s death, by will or otherwise, and who in reliance thereon has improved the property and performed service the value of which cannot readily be estimated, is entitled to an injunction against the execution by his father of a deed to some one else.” (Holland v. Holland, 89 Kan. 730, syl. ¶ 1, 132 Pac. 989.)
There is room for discussion as to the extent of the interest of the son in his father’s property by inheritance. At the time the contract was made and executed it was by law one-fourth; since the death of the mother it is one-half. The fact that the mother signed the contract strengthens the argument for one-half. On the other hand, there might have been other children bom to these parents which would have reduced the share of legal inheritance of this son. But we are basing this decision on the language of the contract as it was intended and necessarily understood when it was made, which was, of course, one-fourth, and such common understanding and intention is just as effective as if the contract had said one-fourth. This interest should be impressed as a trust upon the entire property of the appellee until his death, and a trustee should be appointed to administer such trust.
The appellee contends that the court erred in making the allowance to the appellant in cash instead of requiring him to accept it in property. We think not. The language is, “the parties must take their part in property and not in cash.” This necessarily refers to the proportional part or portion in the property and not this money substitute for part or portion. We have assumed there is no controversy about the lot mentioned in the judgment, title to which is given by the trial court to appellant.
The judgment of the trial court is affirmed in every particular except the quieting title in the appellee and failure to declare a trust estate in appellant of one-fourth of the entire estate of the appellee except the money judgment given appellant herein and indebtedness existing when this action was commenced. To that extent the judgment is reversed with instructions to render judgment accordingly, declare a trust, and appoint a trustee. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff was the owner of a 280-acre farm, part of which lay north of an east-and-west road and the remainder of it south. On August 15, 1923, she leased this farm to defendants for a term of seventeen months beginning October 1, 1923, and ending March 1, 1925, reserving for her own use a small house-and-garden patch on the east end of the farm. The tenants were to farm the cultivated portion of the land to crops and deliver to plaintiff a stated share of them as rent, and it was agreed that if defendants desired to pasture some of the land, rent was to be paid in cash on an estimate of crops on adjoining land. Plaintiff alleged that defendants refused to cultivate 80 acres of the land,' that crops on adjoining land made seven bushels of wheat per acre, and that plaintiff’s share so computed for this 80 acres would be $280. It was further alleged that defendants used the house- on the farm reserved by plaintiff for more than three months, and that the rental value of such use was $21. Plaintiff acknowledged herself indebted to defendants $40 for milk, and prayed judgment for $261. Defendants answered acknowledging the execution of the lease and alleged that plaintiff breached the agreement in that she did not place defendants in possession of the premises until October 29, 1923, by reason of which they were unable to put the field in question in wheat that year, and were damaged in the sum of $240, and alleged that the milk bill owed by plaintiff was $51. Defendants denied any liability to plaintiff and prayed judgment for $291.
There was a trial to the jury, which returned a general verdict for defendants for $174.04 and answered special questions; that defendants used the 80 acres in question for pasture of milk cows; that they were not pastured on this land the greater part of the years of 1923 and 1924; that the yield of wheat on the land adjoining the 80 acres in question was five bushels per acre; that wheat was reasonably worth 85 cents per bushel at the harvest season of 1924; that defendants turned their cows on this 80 acres immediately after they moved on the farm and repaired the fence around the tract of land; that defendants did not rent the small house on the farm reserved by plaintiff. Judgment was entered for defendants in accordance with the verdict and findings. Plaintiff’s motion for a new trial was overruled, and she has appealed.
Appellant contends that the court erred in failing to instruct the jury that in order for defendants to have a legal counterclaim, defendants must prove by a preponderance of the evidence that the failure of plaintiff to place them in possession of the house or of the land was the proximate cause of defendants’ failure to cultivate the land. The instruction of the court fairly and clearly placed on defendants the burden of proof of the matters upon which they relied.
Complaint is made that the court did not permit plaintiff to show a parol agreement between her and defendants that defendants might use plaintiff’s plows. We think the court rightly excluded this for the reason that it was not the lack of plows which kept defendants from going into possession of the premises north of the road —it was the prior tenant there, who refused to permit defendants to go into possession until he was ousted by an action brought by plaintiff in the city court of Coffeyville. Defendants’ evidence was to the effect that they had plows and teams to operate them. More than that, the excluded evidence was not offered on the motion for a new trial, as required by statute (R. S. 60-3004), and the point is not available on this appeal.
Plaintiff complains that the jury did not estimate the damages according to law and the evidence. The contention is that the cor-l’ect rule for measuring damages was not applied; that defendants should have shown what loss, if any, they sustained by reason of not being able to put in a crop, rather than to show the value of the use of teams and a hired man kept idle while trying to get possession, and rent which they paid elsewhere for that time. Plaintiff requested no instruction on the method of measuring the damages, if any were found. The court told the jury:
"Should you find that from a preponderance of the evidence, the defendant was prevented from tilling and sowing the eighty acres of land, or any part thereof, to a crop, by reason of the fact that he did not secure possession in time so to do, and that by not securing said possession he was damaged as alleged by him, then you should allow him such sum as in your judgment he is fairly entitled to under the evidence and all the circumstances.”
This covered the question in the absence of a request for a more specific instruction.
It is contended the jury erred in estimating damages according to the answers to the special questions. It is difficult to tell what methods the jury used in computing the amount of damages. Counsel on both sides make computations in their briefs which may or may not have been those used by the jury. Whether plaintiff was entitled to recover anything because the field in question was not put to wheat depended on whether she breached the contract by withholding possession to defendants until the latter part of October, when it was too late to prepare the ground and sow the crop of wheat. It was in effect conceded that defendants were entitled to the amount of the milk bill, which by the time of the trial was $61.37. Defendants had to pay $25 for a place to stay the month of October. There was other evidence to show that defendants were damaged by having teams, equipment and a hired man idle during October. There was also evidence that they were prevented from putting a wheat crop on this land, as they had planned. So there is ample evidence either way it was computed to sustain the damages found by the jury. The other questions argued do not require special discussion.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, a corporation, sued to recover the sum of $1,000, which the defendant had agreed to pay on a subscription given by himself and others to the plaintiff with which to discharge a $70,000 indebtedness owing by the plaintiff to two banks in Colby, Kan. Judgment was rendered in favor of the defendant, on his motion for judgment on the pleadings and trial statement of the plaintiff, on the ground that they did not state a cause of action against the defendant. The plaintiff appeals.
The petition alleged that the plaintiff was incorporated; that it was engaged in the business of buying, shipping, and selling grain, coal, and other farm products, buying and selling farm machinery and implements, and had an elevator, machinery sheds, and warehouse at Colby; that the defendant was a stockholder in the plaintiff corporation; that the plaintiff became indebted to two banks in Colby in the sum of $70,000, and was unable to carry on its business without more money; that to obtain money with which to discharge that indebtedness, the defendant, with other stockholders, signed a subscription paper in which he promised to pay to the plaintiff the sum of $1,000, as soon as the sum of $70,000 had been subscribed and paid, and upon such payment he would receive a certificate of indebtedness of the plaintiff in payment of his subscription; that the $70,000 was subscribed, and the indebtedness was paid; that a certificate of indebtedness was tendered to him; and that he refused to pay the $1,000. The instrument signed by the defendant, and on which the plaintiff seeks to recover, is as follows:
“We, the undersigned, members of the Thomas County Cooperative Association of Colby, Kan., and signers of the guarantee for the payment of the association’s debts, debts dated March 21, 1921, hereby agree to pay in cash, upon demand, the sum of money set opposite our names for the purpose of paying off the present indebtedness of said association, taking a certificate of indebtedness of said association in payment as evidenced by said certificate and according to the terms embodied therein.
“Charles Pearson
$1,000.’
The contract disclosed that the defendant, with others, had guaranteed the payment of the $70,000 indebtedness to the two banks. The opening statement of the plaintiff was in accordance with the petition, and was not at variance with it.
1. The plaintiff argues that the petition stated a cause of action against the defendant, and that it was error to render judgment in favor of the latter on his motion for judgment on the pleadings and trial statement. The defendant argues that the contract was not supported by any consideration. Such promises as were made by the defendant and the other subscribers are on a sufficient consideration for the contract, and are enforceable. (37 Cyc. 482; White v. Scott, 26 Kan. 476; McCormick v. Gas Co., 48 Kan. 614, 29 Pac. 1147; American Legion v. Thompson, 121 Kan. 124, 245 Pac. 744.)
2. The defendant contends that the subscription signed by him is an agreement to loan money, and its breach does not render him liable. That contention is based on a wrong interpretation of the contract. It is a subscription to a corporation in which the defendant was a stockholder, and which was so deeply involved in debts guaranteed by the subscriber and others that it could not do business without more money. To help in furnishing that money, the defendant signed the contract. That contract is more nearly analogous to a subscription for stock in a corporation than it is to an agreement to loan money. Such subscriptions for stock are enforceable, not because they are agreements to loan money, but because they are agreements to furnish money in consideration of stock issued by the corporation. The money is furnished to enable a corporation to go into business. In the present action, the defendant agreed to pay the money in order to enable the corporation in which he was financially interested to pay the debts guaranteed by him, and to continue in business. He was agreeing to invest his money in a business enterprise, not agreeing to loan money.
3. The defendant urges that the plaintiff is not the real party in interest, and for that reason it cannot maintain this action. The promise was made to the plaintiff for the plaintiff, not to, nor for, any other person. The plaintiff was therefore the real party in interest and can prosecute the action. (37 Cyc. 501.)
4. The defendant urges that “the purpose for which this money was to have been raised has been served and defendant cannot be called upon to pay the money for any other purpose.” The petition alleged the $70,000 had been paid at the time the suit was brought. How it had been paid was not alleged. If it had been paid by funds arising in any way other than from the subscriptions, or on the faith of them, that matter should have been shown by the defendant as a defense, if it constituted any defense, which it is now not necessary to discuss. It was not necessary for the plaintiff in the petition to allege matters to avoid that defense.
The judgment is reversed. | [
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The opinion of the court was delivered by
Burch, J.;
A defendant in an action to quiet title, who had been served by publication and had made default, petitioned the court to vacate the judgment in favor of plaintiffs^on the ground the judgment had been procured by fraud. A demurrer was sustained to the petition to vacate, and defendant Falkenberg appeals.
In May, 1914, Falkenberg commenced an action to foreclose a mortgage on the land in controversy, given by O. M. West to L. M. McClure and assigned byJVIcClure to Falkenberg. The petition alleged that Potts and wife claimed an interest in the land, the exact nature of which was unknown, but that the interest, whatever'it was, was subject and inferior to the mortgage. Potts and wife did not appear. The foreclosure proceeding f^ook the usual course, and resulted in a sheriff's deed to Falkenberg, which was filed for record in October, 1915. In October, 1919, Potts and wife commenced an action to quiet their title to the land. Falkenberg and others were made defendants, and Falkenberg was served by publication. The affidavit for publication service stated Falkenberg was a resident of Jackson county, Mo., gave his post-office address, and stated service could not be made on him in Kansas. The petition alleged plaintiffs were owners in fee simple and were in peaceable possession of the land, and defendants claimed interests adverse to plaintiffs, the exact nature of which was not known, but such interests were subordinate and inferior to the interests of plaintiffs. The cause came on for hearing November 24,1919. Falkenberg did not appear, and the court approved the service. The journal entry of judgment recited that, after hearing the evidence, the court found plaintiffs were in actual and peaceable possession of the land at the time the action was commenced, that they were owners in fee simple, that defendants had no interest in the land, and that the title of plaintiffs should be quieted. Judgement was rendered accordingly. On September 23, 1925, Falkenberg commenced this proceeding to vacate the judgment. The fraud charged consisted in presenting to the couz’t a petition to quiet title containing false statements of fact as a basis for relief, procuring service on Falkenberg by means of a false affidavit, and taking judgment according to the false petition. The petition to vacate alleged that plaintiffs knew all about the foreclosure proceedings, knew of the sheriff’s deed, knew that Falkenberg was owner of the land and in possession of it, and knew plaintiffs were not owners and wez*e not in possession; that the entire proceeding to quiet title was a fraud on the court; that Falkenberg had no opportunity to appear and defend; and that he did not discover the fz'aud until in February, 1924, within two years of the time he commenced the proceeding to vacate.
The affidavit on which publication service was based was specific with reference to Falkenberg’s residence in Missouri and plaintiffs’ inability to serve him with process in Kansas, and jurisdiction of the court to proceed rested on the showing made by the affidavit. (Davis v. Land Co., 76 Kan. 27, 90 Pac. 766.) The petition to vacate did not allege Falkenberg resided in Kansas, or could have been served in Kansas; his attorneys specifically admit he was a resident of another state than Kansas, and was absent from this state, and consequently, whether there was fz-aud in the service depends on whether a genuine cause of action to quiet title existed.
The petition to vacate was filed in the original action to quiet title, in accordance with the code of civil procedure, and the proceedings are governed by the code. (R. S. 60-3007, 60-3008, 60-3011.) The judgment quieting title was rendered on November 24, 1919, the petition to vacate was not filed until September 23, 1925, and the district court had no jurisdiction to inquire whether a genuine cause of action to quiet title existed. When a judgment has been rendered, power of the court to vacate it for fraud continues for two years. At the end of two years the power ceases to exist. The time limitation is a restriction on jurisdiction to act, and the time when the fraud was discovered is not material. (Blair v. Blair, 96 Kan. 757, 764, 153 Pac. 544.)
Falkenberg asks that the petition to vacate be considered a petition in a new and independent suit in equity, to- set aside the judgment quieting title on the ground of fraud. That may not be done, because the fraud of which he complains was intrinsic in the determination of the action to quiet title. Equity may set aside a judgment procured by extrinsic fraud, but public policy requires there shall be an end to litigation, and when a party to an action has been duly served, and has not been prevented by actual fraud from defending on the merits, he has had his day in court, and may not appeal to equity to undo the result on the ground the stated cause of action was based on fictitious grounds or was sustained by perjury. (Blair v. Blair, supra.) The distinction between extrinsic fraud, which prevents fair presentation of the controversy to the court, and intrinsic fraud, which relates to fair determination of the controversy by the court, was clearly pointed out in the case of Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079. It was there said that equity will relieve against extrinsic fraud, but not against intrinsic fraud, and authorities for the doctrine were collated. The subject was again treated in a recent hard case in which a distressingly fraudulent judgment was rendered in December, 1919, and the petition to vacate was not filed until January, 1923. (Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 215, 243 Pac. 306.) In the case of Harvey v. Dolan, 103 Kan. 717, 176 Pac. 134, the defendant in an action to quiet title, who had been served by publication, filed a belated petition to vacate the judgment on the ground of fraud. The fraud charged was that the petition in the action to quiet title contained a false and fraudulent allegation relating to plaintiff’s possession, and the court was imposed on by false testimony. In the opinion it was said the proceedings in the action to quiet title did not reveal the fraud; therefore, the defendant’s remedy was that provided by the code, and be cause he did not move to vacate the judgment within two years from the date of its rendition, he was remediless. The opinion concludes as follows:
“The misfortune of the plaintiffs, that they failed to learn of the decree until some six years after its rendition, cannot operate to extend the running of the statute beyond the period fixed by the legislature. Had the plaintiffs come into court within the statutory period, the matters of cotenancy and adverse possession argued by counsel would have been proper for consideration, but the time for such consideration has passed.” (p. 719.)
The result is, the demurrer to the petition to vacate was properly sustained.
In a supplemental brief filed by Falkenberg, the sufficiency of the affidavit for publication service in the action to quiet title is challenged. The challenge was not made in the petition to vacate, and it may not be considered here.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In this action the Kansas Wheat Growers Association seeks to recover from one of its members damages for his failure to deliver his wheat to the association as provided in the contract. The case was tried to the court, who made findings of fact and conclusions of law and rendered judgment for defendant. Plaintiff has appealed.
As supporting the judgment of the court below it is argued that the contract is void in that it violates our antitrust laws. (R. S. 50-101 et seq.) In previous cases this court has held that the contract in question and the statute (R. S. 17-1601 et seq.) authorizing it are not invalid for the reason that they tend to create a monopoly. (Wheat Growers Association v. Schulte, 113 Kan. 672, 216 Pac. 311; Wheat Growers Association v. Floyd, 116 Kan. 522, 227 Pac. 336; Wheat Growers Ass’n v. Loehr, 118 Kan. 248, 234 Pac. 962; Wheat Growers Ass’n v. Charlet, 118 Kan. 765, 236 Pac. 657; Wheat Growers Ass’n v. Sedgwick County Comm’rs, 119 Kan. 877, 241 Pac. 466; Wheat Growers Ass’n v. Rowan, 123 Kan. 169, 254 Pac. 326; Wheat Growers Ass’n v. Massey, 123 Kan. 183, 253 Pac. 1093.)
These decisions have been repeatedly cited and followed by courts of last resort in other states construing similar contracts and statutes. (Louisiana Farm Bureau C. G. Coop. Ass’n v. Clark, 160 La. 294; Nebraska Wheat Growers Ass’n v. Norquest, 113 Neb. 731; Clear Lake Coop. L. S. S. Ass’n v. Weir, 200 Ia. 1293; Dark Tobacco Growers’ Coop. Ass’n v. Robertson, 150 N. E. 106, 113 [Ind.] ; Burley Tobacco Growers’ Coop. Ass’n v. Rogers, 150 N. E. 384, 388 [Ind.]; List v. Cooperative Ass’n, 114 Ohio St. 361.)
Some of our cases, and many from other states, are cited in 41 C. J. 167, where it is said:
“Cooperative marketing associations organized under such statutes have uniformly been held lawful combinations and not in restraint of trade and not monopolies in the sale of the products handled by them, and therefore not within the condemnation of state constitutional provisions or of state antitrust acts, aimed at combinations in restraint of trade and monopolies. And the fact that a cooperative marketing association is lafge and powerful, and may sometimes be guilty of coercion or suppression of competitors, arbitrary fixing and maintenance of prices, or other acts making combination illegal, does not render it an unlawful combination or trust.”
We are satisfied with the conclusions heretofore reached on this question and deem them not open to further argument. The only respect in which the question ■ here differs, if it does at all, from those previously determined is this: It was contended, and the trial court found, that at the time the contract was made plaintiff’s solicitor stated in effect that when, and if, the plaintiff increased its membership so as to include growers of fifty-one per cent of the wheat grown in the United States its plan then was to fix prices or to raise prices to the growers, and that this was one of the purposes defendant had in view when he signed the contract. It is contended this rendered the contract void. This contention lacks merit for two reasons: First, plaintiff’s solicitor could not vary the terms of the contract nor the purpose for which plaintiff was organized by a statement of that character (Wheat Growers Ass’n v. Charlet, 118 Kan. 765, 766, 236 Pac. 657). Second, the time when or conditions under which such an effort would be made, as the parties talked it, was to be at some indefinite, perhaps never-to-be-realized future time or condition; it was not an agreement contemplating immediate action in restraint of trade, as in State v. Smiley, 65 Kan. 240, 69 Pac. 199. To this may be added a third, that the cooperative marketing act, the organization of plaintiff thereunder, the preparation and execution of contracts with members, and the conduct of its business, all have for their purpose or design to get better or more stable prices to the growers of wheat. It is a statute passed later than our antimonopoly statute. Both are the exercise of the same legislative power of our government, and if in this respect it conflicts with the earlier antimonopoly statute — a question which we deem it unnecessary here to decide — it "may be regarded as superseding it to the extent and for the purpose of cooperative marketing associations of the character permitted by the statute. (List v. Cooperative Assn. 114 Ohio St. 361; Nebraska Wheat Growers’ Ass’n v. Smith, 212 N. W. 39, 44 [Neb.].)
Defendant contended, and the court found, that he was induced to sign the marketing agreement and to become a member of plaintiff’s association by reason, in part at least, of false and fraudulent representations of existing facts made to him by plaintiff’s solicitor. Plaintiff complains of the finding of the court in this respect as not being supported by the evidence. This complaint is not well taken. There is evidence in the record to support this finding of the court, and that settles the fact on this appeal. The evidence disclosed, however, and the court found that, after having discovered the fraud in the representations which induced him to execute the contract with plaintiff, defendant on three different occasions, either in person or by proxy, as a member of the association participated in general meetings of the membership for the purpose of electing officers and perhaps the transaction of other business. In Wheat Growers Ass’n v. Rowan and Wheat Growers Ass’n v. Massey, supra, it was held that participation as a member in such meetings amounts to a waiver of the right of the member to rescind his contract on the ground of fraud known to him at the time of such participation, and estopped him, when he was thereafter sued on his contract, from contending that he was not a member of the association nor bound by the contract. Defendant attempts to distinguish the holding in these cases' from the case before us, and states the question of waiver is one of intent. In the court below defendant offered evidence tending to show, and the court found, that when participating in the general meetings of the association, after having discovered the fraud which induced him to become a member, defendant did so for the purpose of attempting to elect new officers and with the hope of effecting a change in the management, and that he did not thereby intend to waive the fraud which induced him to become a member or to estop himself from pleading such fraud in a later action. The difficulty with this position is that from the very nature of things defendant cannot occupy two diametrically opposed positions with reference to his membership at the same time. He might very well upon the discovery of the fraud have renounced his membership and rescinded his contract, but if he did so it would not be material to him who were elected officers, nor would the business methods of plaintiff in the future concern him. Or he could waive the fraud which had been practiced upon him, retain his membership notwithstanding such fraud, and as a member be entitled to participate in the meetings as a voter in the election of officers, and thereby endeavor to modify the business practices of the plaintiff association to conform more nearly to his ideas. Only “members present in person or represented by proxy” were entitled to vote at such meetings. (Everts v. Wheat Growers Ass’n, 119 Kan. 276, 237 Pac. 1030.) But it is not conceivable that he could take both positions, contend that he was a member for some purposes and deny his membership for others. We are constrained to hold that by participating as a member in meetings of the association after the discovery of fraud which would have authorized him to rescind his contract, he in legal effect waived such fraud so far as his membership in the association was concerned, and that he cannot now be heard to say that he is not a member of such association. And this conclusion cannot be affected by the fact, if it was a fact, that at the time he participated as a member -in the membership meetings of the association he reserved or harbored in his mind some secret intention not to be bound by the contract because of fraud which induced him to execute it, of which he then was fully informed. As was well said in Wheat Growers Ass’n v. Massey, supra:
“If defendant considered he was fradulently induced to become a member he was privileged to renounce membership, and renunciation would relieve him from obligation to comply with the marketing agreement. It rested entirely with him what he would do. He could rescind and stay out, or he could stay in. But he could not consider himself out at marketing time, and in when corporate business was to be transacted, or keep membership and withdraw from the marketing agreement. No subtlety or sophistry can reconcile these inconsistencies.” (p. 186.)
Defendant contended that, even if he could not rescind or abrogate the contract from the beginning; he was relieved from further carrying out the contract on his part for the reason that plaintiff had breached the contract in two important respects: (a) In not furnishing a local elevator to receive the wheat grown by defendant and other members of the association in that vicinity, and (b) in not classifying and accounting to defendant and other members for wheat delivered according to its quality. As to the first of these the complaint is that plaintiff did not arrange for a local elevator to receive wheat from members. The provision of the contract between plaintiff and defendant relating to delivering wheat reads as follows:
“4. (a) All wheat shall be delivered at the earliest reasonable time after harvest to the order of the association, at the warehouse or elevator controlled by the association; or at the nearest public warehouse or elevator, if the association controls no elevator or warehouse in that district; or by shipment as directed to the association, and by delivery of the indorsed wheat tickets or warehouse receipts or bills of lading properly directed.”
The contract contains no provision that plaintiff will arrange for or furnish a local elevator to handle the wheat, hence, the contract was not breached by plaintiff’s failure or inability to do so. The contract places the duty on the members to get the wheat to the association. The receiving of the wheat at local elevators and shipping it to the association is frequently arranged for by an organization of the members of the association in a vicinity known as a local. Defendant was a president of the Saxman local. Shortly before harvest in 1923 the president and secretary of the Saxman local signed a contract with the Kansas-Oklahoma Milling Company, which company was operating an elevator at Saxman, to receive and ship the wheat of the members of the association in that vicinity. That company received the wheat in 1923, but because of financial difficulties it closed and received no wheat in 1924 and 1925. No arrangement was made with any other elevator to receive wheat of the members at that point, and no attempt was made by the president or secretary of the Saxman local to arrange with any elevator at Saxman to receive and ship the wheat of members of the association in 1924 and 1925.
Turning now to the question as to whether plaintiff breached its contract with defendant in respect to classification of his wheat. The contract contains these provisions:
• “4. (c) The association shall make rules and regulations and provide inspectors or graders to standardize and grade the quality and the method and manner of handling and shipping such wheat, and the grower agrees to observe and perform any such rules and regulations and to accept the grading established by the state and federal authorities and the association. The association shall pool or mingle the wheat of the grower with wheat of a like variety, quality or grade delivered by other growers. The association shall classify wheat by quality, grade, variety, or any other commercial standards; and this classification shall be conclusive.
“6. The association agrees to resell such wheat, together with wheat of like variety, quality, grade and classification, delivered by other growers under similar contracts, at the best prices obtainable by it under market conditions
Defendant’s contention is that the quality of wheat depends largely upon its protein content; that plaintiff did not make a proper test of the wheat delivered in 1923 as to its protein content, and therefore violated the contract to classify his wheat “by quality, grade, variety, or any other commercial standards.” Plaintiff did classify defendant’s wheat as containing twelve per cent protein, and settled with him on that basis. Defendant made no showing that this was an inaccurate classification; that this wheat contained more or less protein than twelve per cent, or that he was in any way injured or damaged by the classification of his wheat made by plaintiff. Defendant’s sole contention is that he doesn’t know whether or not this was a proper classification; that plaintiff did not take a sample from each load of his wheat and have it properly tested for its protein content; that it is possible his wheat, if properly tested, would have shown a larger per cent of protein, in which event it should have been classified differently and he might have received more money for it. The argument is purely speculative; he might have received less. Defendant did not furnish plaintiff a sample from each of his loads of wheat for protein analysis. Plaintiff did classify his wheat as to quality, grade and variety, including its protein content. The contract provides “this classification shall be conclusive.” It is conclusive in the absence of any showing of fraud, mistake, or injury to the grower.
From what has been said it necessarily follows that the points relied upon by defendant are not well taken, and that the rulings of the trial court sustaining them were erroneous. It is stipulated that in 1924 and 1925 defendant sold elsewhere 4003 bushels 30 pounds of wheat which, if his contract was in force, should have been delivered to plaintiff.
The judgment of the court below is reversed with directions to enter judgment for plaintiff in accordance with this stipulation. The amount of attorneys’ fees for plaintiff should be determined by the trial court at the time judgment is rendered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by the Commercial Loan and Mortgage Company against W. B. Jones, trading as W. B. Jones Motor Company, for conversion of a Ford- car on which the loan company held a mortgage. The mortgage was given in Oklahoma April 16,1925, and on April 23, 1925, recorded in the proper county where the mortgagor resided and the car was at the time kept. On May 26, 1925, the mortgagor gave a bill of sale of the car to Jones at his place of business in Augusta, Kan., stating that it was free and clear of encumbrances, and Jones accepted it as part payment on a new Hudson which he sold the mortgagor, taking back a mortgage on it for the difference in value. Jones had known the mortgagor about three weeks before effecting the exchange. The mortgagor told him the Ford was mortgaged in Oklahoma and there remained one more payment to be made. Later, on the day of the exchange, he said he had made that payment and it was now clear. Jones did not examine the records in Oklahoma or make any inquiry in that state concerning the mortgagor. In the pleadings and evidence it was developed that the mortgagor used a different name in dealing with Jones at Augusta than the’one he used in Oklahoma. In the purchase of the Ford and the giving of the mortgage in Oklahoma he used the name R. C. Rone, and so registered at the hotel in Oklahoma, but in dealing with the defendant, Jones, and registering at the hotel in Augusta, he used the name R. E. Wrone. The defendant, Jones, maintained that because he took a valid bill of sale-of the Ford from the owner- and because of the records of Oklahoma, not showing any mortgage having been given by his vendor, R. E. Wrone, he was an innocent purchaser and entitled to protection in the purchase. The trial court held otherwise, and Jones appeals.
. The chattel mortgage recording acts of Oklahoma were introduced! in evidence. Like those in Kansas, they are intended for constructive notice, and as to subsequent purchasers and encumbrancers only apply where such purchasers or encumbrancers do not have actual notice or knowledge of a prior mortgage. “Actual notice is as effectual as constructive notice by record as against a subsequent mortgagee.” (Neerman v. Caldwell, 50 Kan. 61, 63, 31 Pac. 608.) “Actual notice of a chattel mortgage is equivalent to filing.” (5 R. C. L. 416.) This rule applies even where the prior mortgage has never-been recorded.
“One who, knowing of the existence of a chattel mortgage, obtains possession of the mortgaged property in exchange for a note executed by the mortgagor prior to the date of the mortgage, cannot maintain such possession' against the mortgagee, notwithstanding the mortgage has not been filed for record.” (Abernathy v. Madden, 91 Kan. 809, syl., 139 Pac. 431.)
There is no question as to the fact that Jones knew of the Oklahoma mortgage. He admits that his vendor told him of it, but says he later told him it had been paid. The notice or knowledge is sufficient if it be such as will put a prudent man upon inquiry. “It is sufficient if it puts a reasonable man upon inquiry which would certainly lead to a knowledge or a disclosure of the mortgage.” (5 R. C. L. 417.) We think there was ample information here to put the defendant upon his inquiry, and the subsequent statement of the same party that the last payment had been made was not under the circumstances, and particularly such short acquaintance, sufficient to justify him in relying upon the statement that the mortgage had been released.
“It is clear that a mere statement to an intending purchaser that the property is covered by a mortgage is sufficient to put him upon inquiry, and he cannot thereafter claim to be an innocent purchaser.” (5 R. C. L. 444.)
Forcible argument and numerous authorities are presented as to the name being spelled differently in the mortgage and bill of sale, and that the record of the mortgage in Oklahoma did not show the mortgage where Jones would have looked for it in the index of mortgages, but that argument would have come with greater force if he had in fact, when upon his inquiry, looked for it on the records and failed to find it after diligent search.
“A chattel mortgage is, in most jurisdictions, valid as against a subsequent purchaser with notice thereof, although it has not been filed or recorded.” (11 C. J. 520.)
The evidence shows he did not examine the records or endeavor to have them examined until some time after the plaintiff made demand upon him for its claim under the mortgage. The defendant in this case, with his knowledge or notice of the encumbrance and his failure to examine the records, is not in a position to claim any advantage of a jnistake in the record, if there was one.
Reaching this conclusion makes it unnecessary to consider the alleged defects in the bill of sale received by defendant from the vendor and the effect of indexing the mortgage under a different name from that by which the defendant knew the vendor.
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The opinion of the court was delivered by
Harvey, J.:
This case is here on rehearing. It was decided in November, 1926 (121 Kan. 802, 257 Pac. 337). The six members of the court sitting were divided, three to three, on some of the questions presented, and no decision was reached on those questions. A rehearing was granted and the case was reargued in March of this year. Before a consultation could be had after that argument one member of the court, Justice Mason, was taken sick. He died on May 4. Wm. Easton Hutchison was appointed to succeed him. Thereafter the court, on its own motion, ordered a rehearing before the whole court. The case was reargued at our July sitting. At that time plaintiffs filed a motion protesting against Justice Hopkins,
“. . . participating in the hearing and in the decision in this cause for the reason that he was formerly attorney-general of the state of Kansas and as such appeared for the defendant and represented him in said cause in the trial court and directed the joining of the issues in said court and in determining the policy of the defense.”
The motion points out the fact that Justice Hopkins did not sit in either of the previous hearings in this court, nor participate in the former decision, for the reasons stated in the motion, and the contention is made that—
“Under these circumstances, the participation of his honor, Justice Hopkins, in the consideration and the decision of this cause at this time, would amount to a denial of due process and of the equal protection of the laws which are guaranteed by the constitution of the United States.”
Plaintiffs cite no statute, or constitutional provision, of this state that would be violated or ignored by Justice Hopkins participating in the consideration and decision of this case; neither do -they specify any particular in which such participation would deny to them due process and the equal protection of. the laws.
The protesting motion presents a preliminary question which should be decided. The facts pertaining to this question, as shown by the record before us, including affidavits filed pertaining thereto, are as follows: Richard J. Hopkins, having been nominated and elected according to our laws, became a member of this court on the second Monday in January, 1923, and since that time has served as a member of this court. During the four years immediately prior thereto he was the attorney-general of this state.
'Much business of a legal and of an administrative nature passes through the office of the attorney-general. By virtue of various statutes the attorney-general is a member of a number of state boards and commissions. His duties in connection with these, and the general administrative duties of his office, make it practically impossible, generally speaking, for him to give his personal attention to preparation and trial of lawsuits, or personally to conduct pending litigation. The office force consisted of four assistant attorneys-general and the requisite number of clerks and stenographers. The work pertaining to the preparation and trial of cases was performed almost exclusively by the assistant attorneys-general, the work being divided among them. J. K. Rankin, then an assistant attorney-general, now an attorney for one of the life insurance companies at Kansas City, had given special attention to the law of insurance, and to him were referred legal questions or litigation pertaining to insurance matters which came to the office of the attorney-general, and he handled them either alone or with the assistance of one or more of the other assistant attorneys-general of the office. When Frank L. Travis, superintendent of insurance, was making investigations and conducting hearings, in the fall of 1921, with respect to premium rates of stock fire insurance companies, he had Mr. Rankin present at one of the hearings or consultations with representatives of plaintiffs. In 1922, after the order complained of in this case had been made, plaintiffs filed this action in the district court, and summons was served upon Mr. Travis. He took the summons to Mr. Rankin and asked him to look after the case on behalf of the defendant. Mr. Rankin advised attorney-general Hopkins that the suit had been brought and was instructed to handle it for the defendant. Mr. Rankin, in consultation with Mr. Dennis Madden, an assistant attorney-general, and who had formerly been a district judge, prepared a demurrer to the petition and argued it in the district court. After the demurrer was overruled Mr. Rankin and Mr. Madden, and Mr. John G. Egan, who then was and now is an assistant attorney-general, conferred as to the further steps to be taken in the case and prepared and filed the answer upon which the case was tried. There was quite a little delay in the beginning of the actual trial of the case. This was occasioned, in part at least, by the illness and death of Mr. Bates, leading counsel for plaintiffs, and by the subsequent illness of Mr. Folonie, who succeeded Mr. Bates as the leading counsel for plaintiffs. At any rate, no evidence was taken in the case while Mr. Hopkins was attorney-general. The first evidence was taken by deposition in December, 1923. The referee was appointed in the district court on June 10,1924, and the taking of evidence before him was begun later. It is not contended, of course, that Justice Hopkins had anything to do with the trial of this case after he became a member of this court in January, 1923. Mr. Travis, the superintendent of insurance, and Mr. Dangerfield, the accountant in his office who had charge of the preparation of statistics to be used in the hearing, had all of their consultations with reference to the preparation of'the case for trial with Mr. Rankin. They both state, that so far as they know Attorney-general Hopkins gave no personal consideration to the defense of the case or the legal questions involved. The statements of Mr. Rankin and the other assistant attorneys-general are to the effect that neither the facts in the case nor the merits of the order made by the superintendent of insurance, nor the facts on which, such order was based, nor the manner of conducting the litigation, were discussed with Attorney-general Hopkins, nor directed by him. Hence, the record discloses that Attorney-general Hopkins did not handle the defense of this case personally, nor give any of the facts, nor the legal questions involved therein, his personal attention. While no doubt his name was signed to demurrers or pleadings filed within his term of office, he was only nominally or officially attorney for defendant, the active attorney for defendant being Mr. Rankin and other assistant attorneys-general.
Disqualification of a judge to sit in a cause by reason of the fact that he had been of counsel for one of the parties prior to becoming a judge is based upon the theory of supposed bias for that reason. In the absence of a statute disqualifying a judge for that reason, he is not disqualified. (33 C. J. 1002; Butler v. Scholefield, 54 Cal. App. 217.) The authorities hold that a prosecuting attorney who later becomes judge is not disqualified to sit in a case by reason of having had something to do with the preliminary stages of the prosecution, unless the statute specifically so provides. (33 C. J. 1005; Eastridge v. Commonwealth, 195 Ky. 126; Hargis v. Commonwealth, 135 Ky. 578; State v. Bordelon, 141 La. 611; State v. Turnhow, 99 Ore. 270; Gandia v. Stubbe, 29 Porto Rico, 141; Kirby v. State, 78 Miss. 175. See, also, Barber County Comm’rs v. Lake State Bank, 123 Kan. 10,252 Pac. 475.)
So, even if we had a statute in this state disqualifying a member of this court from sitting in a case in which he had been of counsel, it would not, under the facts above stated and the authorities above cited, be applicable to Justice Hopkins in this case. But we have no statute, nor provision of our constitution, providing that a judge of this court is disqualified to sit in any case by reason of having been of counsel for one of the parties previous to his becoming a member of this court. We have such a statute with reference to district judges, in which case provision is made for calling in another judge, or selecting a judge pro tem., to try the case. (R. S. 20-305, 20-306.) There is a similar statutory provision as to probate judges. (R. S. 20-1108.)
No provision of our constitution, or of our statute, prescribes conditions under which a member of this court is disqualified from sitting. Neither is there any provision of our constitution or statute for calling another judge to sit in lieu of one who may be disqualified. The framers of our constitution evidently took the view that any person who had the standing and qualifications to become a member of this court would not be presumed to be biased or prejudiced by reason of the fact that some time prior to becoming a member of the court he had been an attorney for one of the parties in the action, and our legislature obviously has consistently entertained the same view. Plence there is no legal disqualification of a member of this court to sit in a cause, unless it can be said to be the common-law reason for disqualification of one who had a pecuniary interest in the result of a cause. We need not decide in this case whether that would be a disqualification, for it is not contended by plaintiffs that Justice Hopkins, or any other member of this court, is disqualified for that reason.
Since there is no method provided by our constitution or statute for having another person sit as judge of this court, if one or more members should be disqualified in a case, it necessarily follows that they must sit, when their views are necessary to a decision. There is no way in which questions may be decided in this court except by the decision of the members of the court. If a member were to decline to sit for a reason which is insufficient, he might be compelled to sit by mandamus. (Montfort v. Daviss, 218 S. W. 806 [Tex. Civ. App.].) This court is organized to decide cases. There is no substitute for it, or for any one of. its members, in our scheme of government. Litigants are entitled to have the essential questions in their cases decided, and the members of this court cannot avoid the duty of deciding them (33 C. J. 989, and cases there cited), and ■certainly cannot do so for reasons that are legally insufficient.
It necessarily follows that plaintiffs’ protest against Justice Hopkins participating in the consideration and decision of this case is neither well founded in fact nor supported by the law. It is therefore denied. Justice Hopkins took no part in the decision of this question.
Passing now to the merits of the case. The general statement of the case, made in the former opinion (121 Kan. 802-804, 257 Pac. 337) need not be repeated. We have before us, speaking in a large way, the single question: Was the order made by defendant, in so far as it pertains to fire insurance premium rates, unreasonable, unjust and inequitable? The trial court regarded this as including the following questions, each of which was considered and determined: (1) Should the rate be fixed so as to yield to plaintiffs a reasonable percentage of the underwriting profits independent of their capital and surplus, or should it be fixed so as to yield a reasonable return upon the amount of their capital and surplus allocated by some proper method to the state of Kansas? (2) In determining the income of plaintiffs, should consideration be taken of their investment earnings? (3) What is the proper basis upon which to predicate the rate of return? (4) Is the order void or unreasonable because it attempts to adjust the rates according to occupancy or vocational classifications without regard to the fire hazard contained in the individual risk? And (5), in view of the conclusions reached in the foregoing propositions, does the order provide a proper and reasonable return to plaintiffs?
Taking up these questions: (1) Upon what are plaintiffs entitled to make a reasonable profit — the value of their capital stock allocated to this state, or their premiums? In other words, should a reasonable premium rate provide a return which, after the payment of losses and expenses, will yield a fair per cent of profit upon the value of the capital employed in the business, or, should capital employed in the business be disregarded, and the return computed upon the amount of premium receipts only and so as to yield a fair per cent of such premiums as a profit? Obviously this lies at the threshold of our inquiry, for until this is determined it is difficult properly to consider the other questions. There is no decided case directly in point as a precedent. Textbooks and articles in encyclo pedias upon insurance are distressingly silent upon the question. Even the late work of Hardy on “The Making of the Fire Insuránce Rate” treats the question purely from an underwriting viewpoint, and does not discuss the question of rates as to producing a fair return or profit. Possibly that is accounted for by the fact that, for the most part, heretofore state statutes regulating stock fire insurance companies pertained more generally to the amount of capital stock and surplus, how it should be paid in, invested, cared for and reported; to regulations pertaining to solvency, the payment of dividends, the forms and conditions of policies, and to preventing discrimination in premiums upon similar risks. Only in recent years, and only in a few states, are statutes found authorizing the state, or some designated board or official thereof, to fix premium rates; and in these states litigation has reached the supreme court in but two cases — Ætna Ins. Co. v. Hyde, 285 S. W. 65 (Mo.), and Bullion v. Ætna Insurance Co., 151 Ark. 519 — but in neither of these cases,was the question here to be determined presented or considered. In the Hyde case the parties agreed that the profits should be computed “on the underwriting business done.” In the Bullion case there was a state statute (C. & M. Dig. [Ark.] § 5969) which required the profits to be computed upon the “aggregate underwriting profit.” In the opinion it was said:
“There is a vast difference between constitutions or statutes which merely protect public utilities in the right to a fair and reasonable return on their business and those statutes which guarantee a certain fixed per cent or profit. See Galveston Electric Co. v. Galveston [D. C.], 272 Fed. 147.” (p. 542.)
In this case there is no agreement between the parties upon the 'question as there was in the Hyde case, and the test required by our statute (R. S. 40-463), unlike that in the Bullion case, is 'that “the rate must be reasonable.”
The question before us has been many times determined in analogous cases dealing with public utilities and other public service corporations, in which, from the nature of their respective businesses, the public has such an interest that the state, or some board or commission provided by it, is authorized to fix the rates they may charge for their services. In these cases of late years it has been uniformly held that the companies are entitled to a rate which, after the payment of proper and necessary expenses and charges, will yield a reasonable return upon the value of their property used and useful in the business. The latest holding of the'supreme court of the United States upon that question is in Board of Public Utility Comrs. v. New York Teleph. Co., 70 L. Ed. 808, in which it was said:
“The just compensation safeguarded to the utility by the 14th amendment is a reasonable return on the value of the property used, at the time that it is being used for the public service.” (p. 812.)
This is the settled holding' of the courts upon the question. Many cases have dealt with the question, but it is not necessary to cite numerous authorities. We fully agree with the principles pertaining to the determination of rates stated in the case last cited. In German Alliance Ins. Co. v. Kansas, 233 U. S. 389, it was held that the business of fire insurance is so far affected with a public interest as to justify legislative regulation of its rates. But plaintiffs contend the rule above stated cannot apply to stock fire insurance companies, for the reason that the capital and surplus of such companies is not property used or useful in the business in the sense that the property of a public utility is so used and useful; that it is not invested in franchises, rails, street cars and street-car barns, etc., as is the property of a street-car company; nor in telephones, poles, lines, conduits, etc., as that of a telephone company; nor in mains, meters, etc., as is the property of a gas or water company. There is no merit in this contention. Naturally it would not be invested in this class of property — each utility, industry, or business invests its money as its peculiar business requires — but there is no room for holding, as contended by plaintiffs, that it is not used and useful in the insurance business. The very nature of the insurance business requires that stock companies engaged therein have capital and surplus with which to conduct the business. The statutes require insurance companies to have capital and to have surplus, to invest it in particular securities, and such investments are, by statute, regulated and supervised with the utmost care. (R. S. 40-201 et seq.) Most of the states, perhaps all of them, have now, and have had for years, statutes pertaining to and authorizing the regulation of the amount and the use and investment of the capital and surplus of insurance companies. The officers and directors of the insurance companies could no more use their capital and surplus in a business, or in a manner, not authorized by the statute than could the utilities company get along without rails, street cars, telephone wires, poles, conduits, or gas or water mains or meters, as the nature of their respective businesses requires. One who invests his money in the capital stock of an insurance company devotes it to an insurance business just as thoroughly and as completely as does one who invests in the capital stock of a public utility company devote his money to that business. When any business becomes so clothed with the public interest that it is subject to legislative regulation and control, included in which • regulation is the authority to fix rates, which rates must be so fixed as to be reasonable and enable the business to make a fair return, there can be no reason for classifying such businesses and saying that the reasonable yield or fair return should in one class of them be computed upon the value of its property used and useful in the business, and that the yield and fair return on another class of such companies should be computed upon the basis of-income, disregarding the capital employed in the business. But plaintiffs argue that persons who invest in the stock of an insurance company could have purchased government bonds or other similar securities, such as insurance companies are required to invest in, and received the return that comes from such' investment without going into the hazardous business pf insurance. There is no reason why that could not be said of stockholders of any corporation engaged in a business impressed with a public interest. One is not compelled to invest his money in the capital stock of companies conducting electric railways, or telephones, or the gas or water business, or the insurance business. He could if he chose, buy government bonds.or other stable securities and receive the returns which those investments yield without being put to the hazard of placing his money in such utilities. But this is not a reason why, in computing a reasonable rate for the utility, the investors or stockholders of the utility should first be allowed a return such as their money would have yielded if invested in stocks or bonds, and in addition thereto that the company should be allowed a reasonable return, not upon the value of. its property used and useful in the business, but upon the amount collected from its patrons for services performed. We can conceive of no reason why such a rule should apply to an insurance company. The question which an investor asks when placing his money in any business, whether it be a private business, or a business clothed with a public interest, is, what will be the net returns upon the money invested? In the closing -up of a business, whether by a voluntary or forced liquidation, the net assets are disbursed on the basis of money invested as represented by the capital. The primary question considered when the investment is made is: What return will the money invested yield? And the final .test on the closing of the business is: What has the money invested in fact yielded? Plaintiffs argued that their capital and surplus is not invested in the insurance business, but is simply put up or impounded, as an evidence of good faith, as security that they will carry out and perform their insurance contracts; that the business of writing insurance is a service to the insured, and hence that charges should be made only upon the service rendered. The business of writing insurance is something more than a service — it is an indemnity, and an indemnity requires funds, not only to secure, but to pay. That is the reason for statutes requiring capital and surplus to be actually paid and to be kept available for the payment of indemnity. Under the statutes relating thereto, the capital and surplus of plaintiffs is devoted entirely and exclusively to the insurance business, as a business, and is and can be devoted to no other purpose.
The face value of the capital stock of any corporation is seldom a true guide to its real value, and that is true of insurance companies. Regarding all of the assets of an insurance company as being used in the insurance business, the reasonable value thereof at the time the inquiry is made should be the basis upon which to compute a reasonable return. Because of the class of securities in which investments of capital and surplus are required to be made, this can be determined with reasonable accuracy. In the report of the joint committee of the legislature of New York appointed to investigate the affairs of insurance companies, other than life insurance, and make a report and recommendation to the legislature, after considering the various methods contended for of computing profits of fire insurance companies, and the inaccurate conclusions which the contending parties had drawn therefrom, is used this language:
“This illusion largely disappears when we consider carefully upon what basis the earnings should be figured. In reality, the amount of the-capital of a fire insurance company has very little significance; it is scarcely anything beyond a basis for computing the ownership of the company. The real capital, in the economic sense, that the stockholders have in the business is to be valued either as what the business would bring if sold as a going concern, or as what it would bring if liquidated. The former, the market price, would in general be greater than the latter by the value of the good will of the business. The sum for which the business could be liquidated, which we may call the proprietorship or the ‘proprietary interest’ would be, in general, the capital, the surplus, and say 30 per cent of the reinsurance reserve (for the reason that the business could be reinsured for about 70 per cent of the reserve; . . .).
“Now this method of figuring profits is the method that is used in every other kind of business, and there is no reason why it should not be equally valuable in fire insurance. It certainly answers the question which the prospective buyer of fire insurance stock wishes to have answered, namely, ‘How much, taking into account all sources of income, underwriting profit, interest and gain from sale of securities, will my investment yield?’ It certainly answers the question which the public is interested in: ‘What, taking everything into account, has the fire insurance business yielded? Have the profits been excessive? if so the premiums must have been too high.’ ” (20 New York Assembly Documents, p. 56 [1911].)
This committee recommended, among other things, that the state should not undertake the business of fixing' rates for fire insurance for stock fire insurance companies, for the reason that the competition of mutual and reciprocal fire insurance companies, the possibility of the formation of other stock fire insurance companies, and the constant insistence of the insured for lower rates, would tend to prevent unreasonably high rates by joint-stock companies. But the question, whether the state should undertake to fix fire insurance rates, is not before us. Whether wisely, or unwisely, our state has done so, and the prudence of that is a legislative question, not a judicial one. The report of the commission is important, however, upon the question of the correct basis to compute the earnings of stock fire insurance companies.
It is argued that to fix rates to yield a fair return on the value of capital would force the placing of different rates for the separate companies, for the reason that some of them have much larger capital than others; but this contention is erroneous. Even a greater discrepancy would appear if separate companies were to be treated as to their premium income less expenses and losses, for this, as to the different companies, shows a much greater variation than there is in their capital stock. But both of these considerations are eliminated when we consider, as we must, that separate rates of premium on specific property cannot be made for different companies. To do so perhaps is impossible, certainly is impracticable and undesirable. For the purpose of determining rates of premiums, plaintiffs must be considered as a whole, just as though collectively they constituted one company, and the rate established for a specific property must be one which each of the companies may use. In this case it is conceded this is true. The result may be, and is, that some of the companies will make more profit than others; some may sustain an actual loss. This is inevitable. It arises from many causes — the selection of risks, the volume of business written, the expense in proportion to the business, and the losses which are sustained, which necessarily are variable from many causes.
Defendant has contended that the amount of the capital and surplus, actually paid in by the stockholder at the time the insurance companies were organized, and additional payment to capital and surplus by the stockholders, not derived from earnings (allocated to this state), is the sum upon which plaintiffs are entitled to make a reasonable return. But this is inaccurate. The present capital and surplus of plaintiffs is made up in part by past-accumulated earnings, some of which has been disbursed as stock dividends and some of which has been retained as surplus, although under the statute it could have been disbursed either as cash or stock dividends. This forms as much a part of the present value of the capital of plaintiffs as though it had in fact been disbursed to the stockholders and by them reinvested in the capital and surplus of their respective companies. Though plaintiffs’ profits in the past may have been large, that is not a reason they should now be required to do business at a rate which will not yield a reasonable return upon the present fair value of their property actually used and useful in the insurance business. (Newton v. Consolidated Gas Co., 258 U. S. 165, 175.) Since plaintiffs do business in other states, and some of them in foreign countries, this value should be allocated to this state in the proportion that the insurance business transacted by plaintiffs in this state bears to their total insurance business. In the referee’s report there is a discussion of different methods of making such an allocation, if one were made, and of different results obtained by different methods of computation. Since, in the court below, the reasonable return was not computed upon the reasonable present valúe of the property of plaintiffs used and useful in the insurance business, and no allocation thereof to this state was made, we do not feel called upon to determine between two or more methods of computing such allocation, any further than to say that such allocation should be made upon consideration of all the insurance business transacted by plaintiffs in this state as compared with all the insurance business transacted by plaintiffs elsewhere. We apprehend there will be no difficulty in finding a proper method of making such allocation, when it is once attempted. It was error for the court below to disregard, the value of plaintiffs’ capital and to take the premiums received by plaintiffs as a basis upon which to compute a reasonable return.
Turning our attention to the next question: (2) In determining the income of plaintiffs should consideration be taken of their investment earnings? Plaintiffs contend their investment earnings are entirely independent and distinct from underwriting profits and should not be included in their gross income for rate-making purposes. We are unable to see merit in this contention. No reason suggests itself why the business of insurance should not be regarded as a whole. So far as the real owners of the business, the stockholders, are concerned, all income arising from the business, and all expenses and loss incident thereto, should be considered, and must of necessity be considered, in determining whether or not there has been a profit, and the extent and amount thereof. Defendant contends R. S. 40-214 requires income from investment to be considered. By R. S. 40-111, 40-113, 40-206, it is clear that investment earnings are regulated and safeguarded. In estimating profits for the purpose of declaring dividends unearned premiums are required by statute to be reserved. This requirement is primarily in the interest of solvency, as will be later discussed. Plaintiffs call our attention to the Minnesota Rate Cases, 230 U. S. 352, and allied cases, which hold, in substance, that assets and property of a public utility not devoted to public service cannot be considered as a basis of rate-making. The rule is sound in reasoning and is sustained by an array of authority. The difficulty of applying the doctrine of these cases to stock fire insurance companies, and especially to the case before us, is that there is no showing that the capital or surplus of plaintiffs, or any part of it, is not used in the insurance business. In fact, the testimony from each of the officers of plaintiffs who testified upon the subject is that capital had been increased from time to time and the surplus had been, in part, retained and not disbursed to the stockholders because it was advantageous to plaintiffs in the insurance business. It is argued that separate employees, and in some instances separate officers of the company, devote their time to investment, while others give attention to the underwriting. This is not a reason for regarding the businesses as separate. In any large business no one person can transact all of it. The fact that some employees or officers devote their time to a particular part of the business rather than to another is no indication that all of it is not a part of the insurance business as a whole. Plaintiffs speak of the investment portion of their business as a banking business, or the banking end of their business. In a series of decisions, years ago, the distinction between the insurance business and the banking busi ness was noted, and it was held the one did not embrace the other. (New York Fire Ins. Co. v. Ely, 5 Conn. 560; The Ætna Nat. Bank v. Charter Oak Life Ins. Co., 50 Conn. 167, 183; Blair v. Perpetual Insurance Company, 10 Mo. 559; Ohio L. I. & T. Co. v. Merchants’, etc., Co., 11 Humphrey 1 [Tenn.]; Life Association of America v. Levy, 33 La. Ann. 1203; Huter v. Union Trust Co., 51 N. E. 1071 (Ind.); Myers v. Mutual Life Ins. Co., 153 Ind. 204; Robotham v. Prudential Insurance Co., 64 N. J. Eq. 673; National Bank of Washington v. Insurance Co., 41 Oh. St. 1.)
In Memphis v. Memphis City Bank, 91 Tenn. 574, the court held that a corporation entitled the “Memphis City Fire and General Insurance Company,” whose officers are authorized to write insurance of various kinds, “and generally to do all things necessary and proper in carrying on the general insurance business,” is not empowered to do a banking business, although its charter provides that it may purchase, hold, and convey any and all kinds of estate, real, personal, or mixed, receive in trust money or other valuable things,, and loan surplus funds on any stocks of any incorporated company, or of the United States, or “invest them in any real or personal estate, or choses in action, or other good securities.”
And, on appeal of that case to the United States supreme court, 161 U. S. 186, touching the claim of the company that it had, by legislative authority, changed its business from an insurance business to a banking business, and was then entitled to certain exemption from taxation which it enjoyed while conducting an insurance business, the court said: “We think the change from the business of insurance to that of banking is a material and radical change,”' and denied the contention.
Plaintiffs are not incorporated as, and do not have the functions of, banks. They are insurance companies, required by law to have a. capital and surplus with which to conduct their business; and all of their business transactions, their underwriting and their investments, are supervised and regulated for the common good, because-the business as a whole is one clothed with the public interest. (German Alliance Ins. Co. v. Kansas, supra.) In the case of Ætna Ins. Co. v. Hyde, supra, it was held that the income from investments representing capital and surplus should not be considered, but the income of investments representing unearned premium should be considered. Upon this point there was a division of opinion among the members of the court.
It may be noted that since the controversy in that case arose the Missouri legislature enacted a statute (act approved March 21, 1923, amending § 6283 Rev. Stat.-1919) requiring the superintendent of insurance, in determining the question of rates and profits, to take into consideration, among other things, “all earnings of such companies, including investment profits.” While we agree with the Missouri court that income from investments from unearned premiums should be taken into account, we are unable to see a good reason for not taking into account income from investments of capital and surplus. All of it is income for the companies; it is a part of the insurance business, and should be considered together with income from premiums, and any other income of the business. It was error for the court below to disregard income from investments.
Passing to the next question: (3) upon what principle should underwriting profits be computed? or, as may be otherwise stated, what premiums shall be considered and what losses and expenses shall be considered in determining the underwriting profits of plaintiffs? Since we have already determined that rates should not be based on underwriting profits only, but should include a consideration of all the income and all expenses and losses, this question becomes of secondary importance; but a brief discussion of it may be helpful. In Bullion v. Ætna Insurance Co., 151 Ark. 519, decided under a statute which' required premium rates to be determined by the “underwriting profits,” the definition of that term was important; but, as previously pointed out, that is not true under our statute, which does not use the term “underwriting profits,” but which makes the reasonableness of the order affecting rates the only test. On this branch of the case it is not necessary to elaborate extensively what was said in the former opinion (121 Kan. 802, 805-811, 257 Pac. 337). One correction should be made. It was there stated: “Incurred losses and expenses . . . average, from year to year, from 10 to 12% per cent more than losses and expenses annually paid.” While the evidence as to some of the plaintiff companies showed the difference to be that great, considering all the plaintiffs, the difference is not so much. We adhere to the view, previously expressed, that in determining the profits of plaintiffs, losses and expenses should not be computed substantially greater than they are. Since the filing of the former opinion a great deal has been said in the briéfs and oral arguments with reference to premium receipts, as there discussed; but the question, what profit the premium receipts yielded, is still unanswered. The real difficulty with plaintiffs on this branch of the case is this: After having persuaded the referee and the court below to disregard the value of the capital used in the insurance business (properly allocated to this state) as the sum on which they are entitled to make a reasonable profit, and to disregard income from investments required by statute to be made by them in conducting the insurance business — both of which conclusions we have now determined to be erroneous — and having the inquiry as to their profits limited to premium receipts, less losses and expenses, they have failed to show what has become of all the premium receipts; what profit, if any, resulted from premiums received. If profits of plaintiffs are to be computed from the “underwriting business” alone, the method pursued is not important. All that is required is that it be some accurate method, and that it be complete.
The method used by plaintiffs in this case was both inaccurate and incomplete. It was inaccurate in the one respect, at least, of computing losses and expenses substantially greater than they were. It was incomplete in that it did not show what part of the premiums ultimately became profit. The result is that there is a fatal hiatus in the proof. It must be remembered that the gist of plaintiffs’ complaint in this action is that the order made by defendant, sought to be enjoined, so reduced rates that plaintiffs were unable to make a reasonable profit. How is it possible to establish that fact without showing what part of the premiums, if any, ultimately became profits? Obviously, such a showing is essential. The order made by defendant is presumed to be reasonable- — to be one that would enable plaintiffs to make a reasonable profit- in the conduct of their business. The burden was on plaintiffs to establish their allegations that it was unreasonable and confiscatory. They failed to make that showing. It is worthy of note that- plaintiffs, since the filing of the former opinion, no longer contend that Sun Insurance Office v. Clark, [1912] A. C. 443, supports their contention that in computing profits of an insurance company unearned premiums should be disregarded — it seems clear that what was decided in that case had been misinterpreted. It is contended, however, that the Bullion case (Bullion v. Ætna Insurance Co., supra) is an authority for such holding. As previously noted, this case turned on the interpreting of the state statute. The court even took evidence of the author of the bill and of the ideas he had in mind as to the meaning of the language used, and followed what it found to be the legislative intent. The statute differs from ours. The case is neither controlling nor persuasive here.
Another question should be discussed. It was one of the contentions of plaintiffs that the order complained of was void because of the form of the order; that is, because it attempts to adjust rates according to occupancy or vocational classification of the property insured, and also because the increases and decreases were made a named percentage of the final rate rather than the basic rate. Much evidence was taken on this question and it was argued at length before the referee. In the written memorandum filed by the referee with his findings, the evidence and arguments pertaining to this feature of the case are treated at length, and this order criticized in some respects, but with this conclusion:
“So that scientifically unsound as I believe it to be, upon the whole I do not regard it as sufficiently serious to say that it is therefore void.”
When the matter came before the district court the question was again argued. In the memorandum opinion filed by the trial court the question is discussed, together with the report of the referee thereon, with this conclusion:
“The foregoing views were adopted by the referee in his report and I am also in agreement- with his conclusion that while the system adopted by the superintendent is faulty and inferior to the analytic system, yet that fact in itself does not necessarily vitiate the rate order, providing discriminations are not too glaring and an adequate return is attained. The court will, therefore, approve the referee’s report in respect to this objection and proceed to a consideration of more serious and vital propositions hereafter discussed.”
In the former opinion this question was treated as follows:
“Is the order void or unreasonable because it attempts to adjust rates according to occupancy or vocational classifications without regard to the fire hazard contained in the individual risks? The trial court held the order made by defendant was not void for this reason. From this ruling there has been no appeal, hence, we need give the matter no further attention.” (p. 804.)
Plaintiffs complain bitterly of this and say that they had in effect appealed from the ruling of the trial court on this question; that is, they had argued in their brief that it was erroneous, which they regard as a sufficient cross appeal under the rulings of this court, and further argue that they could not have appealed from it for the reason that the decision as a whole was in their favor, and further that the question should be considered in any event; for, if the trial court’s general conclusion in their favor was correct, it should stand, even though reasons given by the trial court were found to be erroneous. On January 5,1927, plaintiffs served on counsel for appellant and filed in this court, as provided by R. S. 60-3314, a notice asking consideration and review of parts of judgment, orders, findings and opinion of the trial court. In so far as plaintiffs seek a review of the adjudication of “the first four” of plaintiffs’ principal contentions, the request is made too late, those questions having been originally adjudicated by Judge Whitcomb more than six months before any appeal to this court was taken. (King v. Stephens, 113 Kan. 558, 563, 215 Pac. 311.) As to whether the order was void because of its form, the notice for review is in timé. We have considered all the evidence and argument pertaining to this question and have reached the same conclusion thereon as was reached by the trial court. So far as making the order apply by a percentage increase or decrease of the final rate rather than the basic rate, it is not only mathematically correct, but. is the effective way for the order to be made. It is mathematically correct because the. rate was constructed beginning with a basic rate, to which was added various percentages of the basic rate for real or supposed hazards growing out of construction, occupation, location, fire protection, etc. Hence, a decrease or increase of the final rate decreases or increases not only the basic rate but each of the additions thereto by percentage and in the same proportion that they were added to it. It is also the practical method of doing so, for there is no difficulty in computing an increase or a decrease of the final rate by a given per cent. Plaintiffs argue that it could be best accomplished by an increase or decrease of the basic rate, but the evidence does not bear that out. Prior to 1918 the basic rate in this state was lower than the basic rate in Missouri,' but the evidence disclosed that the final rate in Missouri was lower than in Kansas. In 1918 the basic rate in Kansas was reduced, and yet the readjustment of the final rate, based on the decreased basic rate, was shown by the evidence to result in an increased final rate. Just what produced this anomalous situation is not made clear, but in view of that experience the effective way to increase or decrease the rate was to make the order applicable to the final rate. So far as the order is based on occupancy or vocational classification, it is inaccurate to say it is wholly so based. The existing rate already includes consideration of all elements pertaining to construction and location, as well as occupancy. These were not removed by the rate order, but continue to exist in the final rate as modified. The order was based on the best information obtainable, after repeated requests by defendant that plaintiffs supply all data and information they possessed pertaining to the -questionand while possibly not perfect— as perhaps it is impossible for any schedule of this character to be perfect, no matter by whom it may be compiled — there is nothing in the record to disclose that it should be held void because4of its form. If this matter can be regarded as being before us, we reach the same conclusión-as the referee and the trial court, namely, that the order complained of is not void for this reason. Further discussion on this point is unnecessary.
In view of the conclusions reached upon the foregoing propositions, has it been shown that the order made by defendant is unreasonable and confiscatory? This must be answered in the negative. The referee found, and it is in effect conceded in this case,, that if the rate should be fixed so as to yield a fair return upon the value of plaintiffs’ capital allocated to this state upon any of the methods suggested, rather than upon the underwriting profits only, the order sought to be enjoined was not unreasonable. We have determined that the rate should be fixed so as to yield a fair return upon the value of plaintiffs’ capital allocated to this state by consideration of all the insurance-business transacted by plaintiffs in this state compared with such business transacted by them elsewhere.
The referee found that if consideration was to be given to investment earnings, the order was not unreasonable. We have determined that consideration should be given to all the income of plaintiffs, including investment earnings.
The referee found that unless the method employed by him in determining underwriting profits — that is, of deducting incurred losses and expenses from earned premiums, plus 35 per cent of unearned premiums — was correct, then the order was not unreasonable. We have determined that this method is incorrect, and further, that rates should not be determined upon underwriting profits alone.
Other questions, some of them pertaining to procedure, are argued by the parties, but we do not find it necessary to refer to them.
From what has been said it necessarily follows that the judgment of the court below be reversed, with directions to enter judgment for defendant. It is so ordered.
Johnston, C. J., and Dawson and Hutchison, JJ., concurring. | [
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The opinion of the court was delivered by
Dawson, J.;
This is an appeal from a judgment reforming the description of certain town lots covered by a mortgage and foreclosing that mortgage according to its intended terms.
Defendant’s objections thereto center about the fact that the mortgage in its defective form had been foreclosed at a prior term of court, and that the procedure later followed, whereby, pursuant to a judgment in an independent action, permission was granted to file an amended petition in the first action to reform and foreclose the mortgage and to prosecute that proceeding to final judgment, was not authorized by the code.
Summarizing the facts and the history of the litigation, it appears that in 1923 M. E. and M. F. Hite owned lots'7, 8, 16 and 17 in block 8, in Southridge, Johnson county, and that they owed this plaintiff $2,293.50, payable in monthly installments, with interest; and to secure the payment of this sum Mr. and Mrs. Hite executed to plaintiff two mortgages on the town lots above mentioned, but in these mortgages the number of the block was inadvertently omitted. Later the Hites sold the property to the appellant, Jessie Wyatt. Default being made in payment of the indebtedness, plaintiff, on February 18, 1925, brought suit to foreclose the second mortgage. Jessie Wyatt filed an unverified general denial. Judgment of foreclosure was entered in favor of plaintiff on April 18, 1925, and the property was advertised for sale. It was then noticed by plaintiff’s counsel that the description of the property in the advertisement was defective and that this defect ran back through the judgment, the pleadings, and the mortgage itself.
Some time prior to the discovery of the defective description of the property the term at which the judgment had been entered had expired. However, on June 24, 1925, plaintiff made an oral motion to set aside the judgment of foreclosure entered on April 18. This was granted, and on the same day an amended petition was filed containing all the pertinent recitals of the first petition, but including also the requisite facts to permit the reformation of the mortgage. Judgment as prayed for was entered September 2, 1925, but was later set aside on motion of Jessie Wyatt on the ground that the first judgment of April 18 had been improperly set aside and that the court was without jurisdiction to render the decree of September 2,1925.
A second amended petition filed December 11, 1925, was stricken from the files on motion of Jessie Wyatt.
On December 24, 1925, plaintiff commenced a new and independent action against Jessie Wyatt and the Hites reciting all the facts outlined above and praying that a new trial be granted. Summons was served on-Jessie Wyatt and notice was also served upon her attorney, but she neither appeared nor answered; and on April 20, 1926, judgment was entered for plaintiff, decreeing that the judgment in the original foreclosure cause should be set aside, and a new trial granted, and that plaintiff should be allowed to file instanter an amended petition therein.
Pursuant thereto, on April 20, an amended petition in the original action was filed, containing all the requisite allegations to justify the reformation of the mortgage and its foreclosure as reformed. The cause was heard at length, the evidence to support the reformation of the mortgage was abundant and all to one effect, and judgment was entered as prayed for.
Jessie Wyatt appeals. She raises a number of technical points, which chiefly center about the finality of the judgment of April 18, 1925, because the term closed before any effort was made by plaintiff to correct the defective description in the mortgage, the pleadings, or the judgment. She contends that none of the grounds prescribed by the code for the granting of a new trial after the term would fit the predicament in which the plaintiff was placed.
The first judgment, entered on April 18, 1925, was a judgment in rem only, and it was altogether ineffective as such by reason of the uncertainty of the description of the property involved. The judgment could not be executed; the sheriff could not find and sell the property because of the defect in the description. The judgment was therefore a nullity. While section 598 of the civil code (R. S. 60-3009) usually has been invoked for the benefit of defendants rather than plaintiffs, it is an integral part of our procedural system for the benefit of either party as justice may require. In this instance it was applicable to the situation of plaintiff. .See, also, Burris v. Reinhart, 120 Kan. 32, 34, 242 Pac. 143. The judgment of the court, obtained by plaintiff after great tribulation, setting aside that first abortive judgment and granting leave to file an amended petition in the first action was in fact an unnecessary and superfluous .procedure. It would have been sufficient to have disregarded altogether the original defective and fruitless judgment and to have commenced anew, reciting all the pertinent facts, the mistake of the scrivener in preparing the mortgage, and the other appropriate allegations for relief. However, all these recitals were comprehensively included in the amended petition which the trial court did approve; and whatever was pleaded unnecessarily was mere surplusage which wrought no prejudice to defendants. Complete justice was eventually accomplished, and our code forbids us to disturb judgments under such circumstances. (Civ. Code, § 581; R. S. 60-3317.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.;
The action was one by the beneficiary in a life insurance policy to recover from the company issuing it. The company contended its liability was limited to the amount of premium which had been paid. Judgment was rendered for plaintiff for the face amount of the policy, and defendant appeals.
The policy was dated September 10, 1923, and was delivered to the insured shortly thereafter and before September 25, 1923. The policy recited that the company insured the life of Walter E. Myers, and agreed to pay, at its home office, immediately on receipt of proof of death of the insured, provided premiums had been paid and the policy was in force, the sum of $3,000 to his wife, Edna E. Myers, beneficiary. Privilege was reserved to the insured to change beneficiary, and if no beneficiary survived the insured the policy was payable to his executors, administrators, and assigns. These were the initial provisions of the policy. Following them various subjects of contract were dealt with under headings, or words which served for headings, in bold-face capital letters. The first one of the succeeding provisions covered the subject of incontestability:
“(1) This Policy Shall Bb .Incontestable after one year from the date of issue, if premiums have been duly paid.”
On the second page of the policy, under the heading “General Provisions,” which was as prominent as any other, appeared seven numbered provisions. The fourth read as follows:
“(4) In case of suicide of the insured, whether sane or insane, within two years from the date of this policy, the liability of the company shall be limited to the amount of the premium actually paid.”
The case was submitted on an agreed statement of facts and some depositions supplementing the agreed statement. The agreed statement contained the following:
“4. That on the 27th day of August, 1924, the said Walter E. Myers committed suicide by hanging. . . . That on September 22, 1924, proofs of death of said Walter E. Myers were made and delivered to the defendant, showing that the said Walter E. Myers had committed suicide by hanging, . . . That on the 30th day of September, 1924, the defendant tendered to the plaintiff the sum of $120, being the full and actual amount of premiums paid by the said Walter E. Myers on said policy. . . .
“5. This action was instituted on the 11th day of April, 1925, and no other action has been commenced in any court concerning said policy of insurance.”
The depositions tended to show the company received information on September 3,1924, that the insured had committed suicide, which was seven days after the event, and seven days before the policy became incontestable.
Plaintiff contends the company undertook to contest the policy, and was precluded from doing so because contest was not begun within one year from the date the policy was issued. In support of this contention plaintiff cites the case of Priest v. Kansas City Life Ins. Co., 119 Kan. 23, 237 Pac. 938. In the Priest case the company defended on the ground the insured in his application for insurance knowingly made false representations regarding the state of his health and other matters material to the risk. (Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538.) The binding force of the contract pleaded as a basis of liability was challenged because the company was induced to enter into it by fraud of the insured, and the case was a typical case of contest of the policy. We have no such case here.
The company has no quarrel whatsoever with the policy. Its position is, the policy is valid in all respects, expresses the obligation of the company, and the company desires to fulfil that obligation. What the company contests is an assertion of liability which it says the policy did not create.
By agreeing not to contest the policy, the company did not agree to stand mute before any unfounded claim which might be predicated on the policy. The application was made a part of the policy, and stated the applicant’s age. Amount of premium is fixed according to age, and the policy contained the following provision:
“If the age of the insured was misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age.”
Suppose it were admitted the age of the applicant was misstated, the premium based on the stated age would purchase insurance to the amount of $2,500 only, and the beneficiary sued for the face amount of the policy, $3,000. In contesting liability for more than $2,500, the company would be insisting on the contract, not contesting it, and it would be unfair to other policyholders paying the proper rate, as well as unfair to the company, not to enforce the policy according to its plain terms. The policy contained provisions relating to loans made to the insured. One of them was t¿at any indebtedness to the company secured by the policy should be deducted in making settlement of benefit. Suppose the beneficiary should sue for the face amount of the policy, it should be admitted an unpaid loan was made to the assured on security of the policy, and the company should resist payment of more than the difference between the amount of the loan and the face amount of the policy. It would be idle to contend the company was contesting the policy. Whatever grounds may exist or may have existed for rescission, cancellation, modification, or other attack on the policy, after expiration of one year from date of issue the policy stood as the indisputable contract, unalterably determined the liability of the company, and the obligation of the contract expressed by the policy must be fulfilled. But to say this determines nothing with respect to what the terms of the contract are which must be fulfilled. Both plaintiff and the company insist that the policy be enforced according to its terms, and the difference between them is a difference respecting interpretation.
What is the extent of the company’s liability on the policy, the insured having committed suicide within two years from date of issue? Plaintiff contends the provision for limited liability in case of suicide renders the policy ambiguous, and it must be interpreted most favorably to the insured. The policy provided for payment of $3,000 immediately on receipt of proof of death of the insured. Suppose that, under the heading “General Provisions,” the policy provided the company would pay double the face amount if death resulted from accident occurring within two years from date of issue. Nobody would say such a provision rendered the policy ambiguous with respect to extent of liability, if the contingency occurred, and if in an action to recover on the policy- the company should deny double liability on the ground the insured did not die as the result of accident, it could not be urged successfully that the company was contesting the policy. The policy provided that any unpaid balance of the current year’s premium would be deducted in any settlement of the policy as a death claim. It is not likety any candid person would contend the provision rendered the policy ambiguous with respect to extent of liability if the assured died owing premium for the current year. The policy further provided that if death occurred as the result of suicide within two years the liability of the company should be limited to amount of premium paid. The policy did not end with the provision for payment of $3,000 on receipt of proof of death. That provision was merely the beginning of the contract. Numerous subjects were to be treated, and various contingencies were to be provided for. The whole contract could not be stated intelligibly without breaking it up into paragraphs, each of which related to a specific subject, and the engagements contained in paragraphs succeeding the first one, or the first two or three, are just as binding as if the order were reversed. To ascertain its meaning the policy must be read through, and each provision must be accorded its reasonable, natural and probable meaning when considered in relation to others pertaining to the same subject, and in relation to the instrument as a whole. • The purpose of doing this is not to discover some “curious hidden sense which nothing but a hard case and the ingenuity of a trained and acute mind” might suggest (Hearin v. Standard Life Ins. Co., 8 F. [2d] 202), or to find some technical basis for sticking in ambiguity when unforced harmonizing will make each stipulation prevail. The purpose is simply to apprehend true meaning. Considering the policy sued on according to this method, it is free from ambiguity, and liability of the company to pay $3,000 on proof of death, created by the first provision, was qualified by other provisions operating under stated conditions. Among those provisions was the one relating to suicide.
Plaintiff contends, however, the incontestable provision of the policy was designed to guarantee payment of benefit free from dispute, except dispute of the fact that premiums had been duly paid.
Perhaps the company aimed at some psychological effect when it arranged the provisions of the policy. Those' making the policy attractive to the insured were placed first: Promise to pay $3,000; privilege to change beneficiary; incontestability; freedom from restriction on travel, residence, and occupation; dividends; and use of dividends to. shorten premium-payment period, or to mature the policy as an endowment. The policy concluded with the provision relating to premiums. Because the policy must be construed as a whole, the order in which the provisions appear is unimportant, unless it indicates purpose to deceive. Formerly a devise in a will or a grant under a deed could not be cut down by a subsequent qualifying provision. The penchant for finding ambiguity in insurance policies is just as prohibitive of rational interpretation as the old thought-stifling formalism. If the suicide provision had been placed in the position of the incontestable provision, and the incontestable provision had been placed under the heading “General Provisions,” their relative importance would not have been affected, and the question would have been, as it is now, What does the instrument mean? There is no basis for an assertion that the arrangement of provisions which was adopted was deceptive, and for the reasons stated the form of the policy is not material.
The suicide provision is clear and explicit. Its plain meaning is that the policy does not become operative as against suicide until two years have elapsed from date of issue, and in the event of suicide at any time within that period, the company’s liability is limited to the amount of premium it has received. Insurance is a business affected with a public interest. Viewed from the standpoint of public interest and public policy, the provision is sound in law, morals, and insurance economy. It was entitled to a place in the contract, was inserted in the contract, and it must not be read out of the contract unless its effect is nullified by some provision of greater potency with which it cannot be reconciled.
What the company was trying to guard against was insurance taken out by a person who intended to resort to suicide as a means of recouping or swelling his estate, or of providing for or enriching some beneficiary or beneficiaries. Experience shows that this is done often enough to warrant declination of the risk. Such being the purpose of the suicide provision, there is no necessary conflict between it and the incontestable provision. In strictness they relate to different subjects. One relates to engaging quality of the contract, and the other to definition of risk. Observing the distinction, at the end of a year the company was bound to the full extent of the risk it assumed, but it was not liable on a risk which it stipulated it would not assume, and the defense that the assured committed suicide no more contested the policy than a defense that he is still alive.
There is a conflict of authority on the subjects which have been discussed. The views which have been expressed are supported by the following decisions: North American Union v. Trenner, 138 Ill. App. 586; Stean v. Occidental Life Ins. Co., 24 N. Mex. 346; Scarborough v. Insurance Co., 171 N. C. 353, 355; Childress v. Fraternal Union of America, 113 Tenn. 252; Sanders v. Jefferson Standard Life Ins. Co., 4 F. (2d) 555; Hearin v. Standard Life Ins. Co., 8 F. (2d) 202; Sanders v. Jefferson Standard Life Ins. Co., 10 F. (2d) 143, (C. C. A. 5th Circuit); Mack v. Connecticut General Life Ins. Co., of Hartford, 12 F. (2d) 416 (C. C. A. 8th Circuit).
Circumstances may be such that a provision for incontestability may prevail over an express provision declaring risk of suicide is not assumed. In the .case of Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, the syllabus states the facts and conclusions of the court:
“The defendant issued to B a life insurance policy for $5,000 payable at his death to his personal representatives. One clause on the printed policy provided that: Death of the member by his own hand, whether voluntary or involuntary, sane or insane, is not a risk assumed by the association in this contract; but in every such case there shall be payable, subject to all the conditions of this contract, a sum equal to the amount of the assessments paid by said member, with six per cent interest; but the board of directors or the executive committee may, in writing, waive this condition. Written in ink across the face of the policy, and forming a part of it, was the following: After five years from the date of this certificate it is incontestable for any cause except nonpayment of dues or mortuary assessment, the age of the applicant being correctly stated in the application for the certificate. The age of the insured was correctly stated in his application, and all dues and mortuary assessments were duly paid up to the time of his death. More than five years after the date of the certificate the insured came to- his death by his own hand. Held, that the ‘incontestable clause’ applied, and that the company was liable for the full sum of $5,000.”
The case was well decided. It did not decide that a contestable clause in an insurance policy nullifies a clause providing that risk of suicide is not assumed; it merely decided that, under the circumstances stated, the incontestable clause in the policy under consideration applied, and the company was liable for the face amount of the policy. The case is frequently cited as establishing a. principle of universal application.
If it be suggested the word “incontestable” has been considered from a lawyer’s and not from a layman’s standpoint, let it be conceded the company is contesting the policy. In that event the policy contains two time limitations with respect to contest. One is general. The other relates to a specific subject, and so constitutes an exception to the general provision. The incontestable provision did not cover the entire subject dealt with by the suicide provision. The suicide provision was not directed against development of suicidal tendency which might constitute ground for action to avoid or reduce liability. It was directed against suicide, which is death by voluntary act. It was directed against suicide occurring within two years from date of policy, and the incontestable provision'could not by any possibility apply to suicide occurring more than one year and less than two years from date of policy. There is no basis for distinguishing between suicide occurring eleven months and suicide occurring twenty-three months from date of policy, and the result is the two provisions relate to different grounds of contest. There is no conflict between them, and each one may be given full effect.
Plaintiff contends the court is committed to the view that an incontestable provision overrides a suicide provision by the decision in the case of Court of Honor v. Updegraff, 68 Kan. 474, 75 Pac. 477. The syllabus reads as follows:
'{‘A life insurance policy provided that it should be incontestable after two years from its date. The insured who held the policy, which was payable to his wife, committed suicide after the two-year period had elapsed. Held, that the beneficiary was entitled to recover the amount.”
It will be observed the syllabus makes no mention of a suicide provision. The statement of facts discloses there was a provision in the contract excluding risk of suicide; but the statement of the question, to be decided disregarded the suicide provision, and took into account fact of suicide only, and not contract relating to suicide:
“The sole question involved is whether the provision in the benefit certificate which rendered it incontestable after two years was void when it appeared that the insured took his own fife.” (p.475.)
Counsel for appellant contended for the broad doctrine of the decision in Ritter v. Mutual Life Insurance Co., 169 U. S. 139 (since modified: see Northwestern Life Ins. Co. v. Johnson, 254 U. S. 96), 'holding in effect that public policy requires that self-destruction of the insured shall avoid a policy on his life. The decision of the court was against that contention. Nothing else was decided, and the authorities cited in the opinion were referred to for the purpose of sustaining the decision, and not for the purpose of taking a position regarding the effect of an incontestable provision on a suicide provision.
In the case of Maccabees v. Nelson, 77 Kan. 629, 95 Pac. 1052, the certificate holder cited the Updegraff case in support of the proposition that the fraternal order issuing the certificate could not by a by-law decrease the endowment to be paid on death of the member by suicide. The Updegraff case did not bear even remotely upon that proposition, but in distinguishing the case the writer of the opinion undertook to tell what was decided:
“The decision in that case was, in effect, the determination of which of two conflicting constitutional provisions should govern; that is, whether the provision which rendered the certificate incontestable after two years was rendered inoperative by another provision relating to suicide. The court decided that the provision rendering the certificate incontestable after two years governed, and upheld the claim of the beneficiary.” (p.635.)
The statement reveals a total misconception of the decision in the Updegraff case, and is incorrect. All that was involved in the Maccabees case was the question of power to change by-laws relating to liability in case of death by suicide, and the court properly sustained the change. The certificate did not contain an incontestable clause, the subject of conflict between incontestable and suicide clauses was not involved, and the erroneous statement did not commit the court to any view on the subject.
Plaintiff contends the agreed facts did not show the insured had sufficient mental capacity to be conscious of the effect of his act in taking his own life. In the case of Hart v. Modern Woodmen, 60 Kan. 678, 57 Pac. 936, the syllabus reads:
“It is competent for parties in contracting as t'o life insurance to provide that self-destruction by the insured, whether sane or insane, shall avoid the contract. Such a provision covers a case of intentional self-destruction by one who understood the physical nature and consequences of the act which caused his death, although his mind was so far impaired that he was not conscious of the moral quality or consequences of such act.”
In that case the agreed facts were that the insured shot and killed his wife, and then shot and killed himself while he was insane and his reasoning faculties were so impaired he was unable to understand the moral quality of his act. In the opinion it was said the agreed facts showed intentional self-destruction, and that while the insured did not understand the moral character of his acts he understood what their physical end and consequence would be. In this instance the word “suicide” in the agreed facts means the same as the word “suicide” in the policy, the insured is presumed to have been sane, and if an insane man knows what it,means to shoot himself, a sane man knows what it means to hang himself.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff for the amount of premium actually paid. | [
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The opinion of the court was delivered by
Marshall, J.:
A statement of the na'.ure <f these actions, the judgments, and who appeal, is found in the supplemental abstract of the plaintiffs as follows:
“These cases are companion cases to the case of G. L. Ramsey, Appellant and Cross Appellee, v. E. F. Adams et al., Appellees and Cross Appellants, No. 27,109. Each case is brought against the same identical defendants for the purpose of recovering against such defendants as officers and directors of the Butler County State Bank, of El Dorado, Kan., certain deposits claimed to have been made by the plaintiff (or plaintiffs) in said bank at a time when said bank was insolvent or in a failing condition, such officers and directors receiving and assenting to the reception of such deposits with knowledge of the insolvent or failing condition of said bank.
“In each case judgment was rendered by the court in favor of the plaintiff (or plaintiffs) and against the defendants C. L. King, A. B. Ewing, L. D. Hadley and H. F. Ferry, and demurrers were sustained by the court to the plaintiffs’ evidence as to the defendants E. F. Adams and G. W. Lyon.
“Judgment was rendered in favor of defendant C. L. Hands, executor of the last will and testament of T. A. Kramer, deceased, in each case for costs.
“In each ease the plaintiff (or plaintiffs) appeals the judgment of the court rendered in favor of defendant C. L. Harris as executor of the last will and testament and estate of T. A. Kramer, deceased, for costs, and the defendant C. L. King, and H. F. Ferry each appeal from the judgments rendered against them in each case.”
The trial statement of counsel for the plaintiffs is set out in their abstract, showing how the actions were tried, as follows:
“This statement applies to each and every case tried here to-day. I talked to the defendant, A. B. Ewing, over the telephone. He is not represented in this court by counsel; but he tells me that these cases may be tried on the general evidence given at the first trial, and subject to the same objections to the introduction of evidence, on the part of all the defendants, presented at the other trial.
“It is agreed between the several plaintiffs and all the defendants in these cases that these seven cases may be tried on the general evidence given at the first trial in the case of G. L. Ramsey v. E. F. Adams et al., subject to the same objections on behalf of all the defendants and the plaintiff in that case; .and to the objections to the introduction of evidence presented at the other trial.
“It is further agreed that the opening statements made to the jury in the case of G. L. Ramsey v. E. F. Adams et al., and included in the transcript of that case, shall be considered and treated as the opening statements in each of the cases tried here to-day.
“Me. Brewster: All the defendants make the same objections to the introduction of evidence in each of these cases that were presented at the other trial.
“Similar opening statements were made in each of the following cases, except the case of G. L. Ramsey and Alice M. Ramsey, No. 27,688.”
1. The questions presented and decided in Ramsey v. Adams, 122 Kan. 675, 253 Pac. 423, are reargued in these actions. What was there said need not be repeated. That decision is adhered to and followed so far as the same questions are here involved.
2. Appellants C. L. King and H. F. Ferry urge a certain question on the attention of the court. For the purpose of accurately ■stating that question, we quo.te from their brief as follows:
“In case No. 27,683 it is alleged that on February 2, 1923, plaintiff had a checking account in the sum of $25.43.
“In case No. 27,685 it is alleged that on February 3, 1923, plaintiff had a checking account in the sum of $551.68.
“In case No. 27,684 it is alleged that on December 27, 1922, plaintiff had a checking account in the sum of $5,535.19.
“In case No. 27,687 it is alleged that on February 2, 1923, plaintiff had a checking account in the sum of $1,187.75.
“In case No. 27,688 it is alleged that on February 24, 1923, plaintiff liadla checking account in the sum of $4,838.28.
“There is no allegation as to when the deposit or deposits which created the balances alleged to have existed on these various dates were made; nor was there any proof to supply this omission. The various plaintiffs allege that after the dates on which they fixed their initial balances they made various deposits and withdrew various amounts by check, and alleged the balance which resulted as of the date of the failure of the bank. The result is that in each verdict or judgment is included the amount of the balance which existed on a date arbitrarily selected by the plaintiffs without the slightest showing as to when the deposit which created such initial balance was made. This question was raised in Ramsey v. Adams, supra, but was not mentioned by the court in its opinion. We again respectfully urge that it should not be presumed in the absence of any evidence and in the absence of any allegations, that these initial balances were created by deposits at times when the bank was insolvent. So far as the record shows, the deposits which created these initial balances may have been made on the day the bank first opened for business and at a time when its solvency was not open tO' question.”
This question is not presented in case No. 27,686. The petitions in the other five cases showed the balances due on the dates named, and then alleged that thereafter on various dates from that time until the closing of the bank different deposits were made, largely exceeding the amount claimed in each petition, and alleged that, different sums were thereafter checked out in excess of the amount named as being on deposit on the first date named in the petition,, the date of what the appellants say was the initial balance. In other words, more than the first or initial amounts named in the petitions were thereafter paid by the bank on the checks of the plaintiffs, and other deposits were made largely in excess of the amounts for which each of these five actions was brought. The deposits sought to be recovered were made after the initial dates named in the petition^ The solvency of the bank before those dates is wholly immaterial. The question is, Was the bank insolvent or in a failing condition when the deposits were made, not when the initial deposits were made? That question of fact was found in favor of the plaintiffs and is conclusive.
3. Interest was allowed from the date of the failure of the bank. The defendants claim that interest should not have been allowed before judgment. Our statute concerning interest, R. S. 41-101, in part reads:
“Creditors shall be allowed to receive interest at the rate of six per cent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the same and ascertaining the balance; . . . for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts.”
When the bank closed the amount due each of the plaintiffs was ascertained and was definitely known. The money was then due. When the bank closed the plaintiffs were unable to get their money from the bank. As between the bank and the plaintiffs, the bank was liable to the plaintiffs for interest for the entire time the money was held by the bank after it closed.
The deposits which the plaintiffs seek to recover were made when the bank was insolvent or was in failing circumstances. The statute, R. S. 9-163, makes the defendants who were officers of the bank individually responsible for those deposits. The liability of the defendants as officers of the bank extends to the entire liability of the bank. Whatever the bank owed, the defendants owe; that includes interest from the time the bank failed.
4. Another question is involved in case No. 27,688 and is now presented for the first time. That question is the right of the plaintiffs as assignees to prosecute the action.
The Ramsey-Lloyd Oil Company, a corporation, was a depositor of the Butler County State Bank, and on February 24, 1923, had on deposit the sum of $4,838.28, and thereafter deposited other sums of money and checked thereon until on the date of the failure of the bank there was on deposit therein $38,951.04. Soon after the failure of the bank, which occurred on March 30, 1923, the Ramsey-Lloyd Oil Company commenced an action against the defendants as officers and directors of the bank to recover the balance of the deposit. A certificate, dated April 23, 1923, was issued by the bank commissioner of the state of Kansas in favor of the Ramsey-Lloyd Oil Company against the bank depositors guaranty fund for the amount on deposit in the bank at the time of its failure.
The petition of G. L. Ramsey and Alice M. Ramsey alleges that in October, 1923, they purchased from the Ramsey-Lloyd Oil Company all the assets and property of every kind and character of the corporation and became, the owners of the amount deposited in the bank. The answer of C. L. Harris, as executor, to the petition of the plaintiffs in this action, alleges that some time prior to June 14,1923, the Ramsey-Lloyd Oil Company commenced an action in the district court of Butler county against these defendants to recover the amount on deposit when the bank closed. The abstract of C. L. King and H. F. Ferry discloses that in November, 1924, a motion was filed in that action showing that after the action of the Ramsey-Lloyd Oil Company had been commenced against these defendants the corporation was duly and legally dissolved and its corporate existence terminated, and that at that time A. E. Lloyd, B. Frost, W. O. Jones, C. C. Fetty and G. L. Ramsey were the duly qualified, elected, and acting directors of the corporation, and that upon the dissolution of the corporation they became trustees for the stockholders and creditors thereof, and asked that they be substituted as parties plaintiff in the action. That motion was allowed December 1,1924. That action has not been dismissed.
In the present action there was no evidence to show the assignment of the right to recover from the bank or its officers, but there was evidence to show that the certificate issued by the bank commissioner against the bank guaranty fund to the Ramsey-Lloyd Oil Company had been assigned to the plaintiffs G. L. Ramsey and Alice M. Ramsey on December 10, 1923. Ramsey v. Bank Commissioner, 115 Kan. 212, 222 Pac. 117, in effect says that the right of action against the officers of a bank and the right to recover from the bank guaranty fund are separate and distinct causes of action. There, the plaintiff was seeking to proceed under both remedies. The court said:
“Having two remedies, one against assets and the guaranty fund, and one against officers of the bank, he chose to invoke both. The statute did not make the receipt of deposits by the bank during insolvency wrongful action by the bank. Without the statute the patron would claim his money as a trust fund, or he could claim as a depositor. Should he claim as a depositor, he has all remedies the law gives to depositors. In bringing this action for his dividend, plaintiff did not waive liability of the bank officers to make good the amount of his deposit.” (p. 215.)
The executor urges that the right of action against the officers of the bank is not assignable. It is not necessary to decide that question, because the evidence did not show an assignment of the cause of action set out in the petition of the plaintiffs, the one on which the defendants are liable, but did show an assignment of the certificate issued by the bank commissioner on the bank guaranty fund, on which the defendants are not liable. G. L. Ramsey and Alice M. Ramsey did not prove the cause of action set out in their petition and cannot recover from the defendants on the cause of action established by their evidence.
The judgments in cases No. 27,683, No. 27,684, No. 27,685, No. 27,686 and No. 27,687 are affirmed as to all the defendants except C. L. Harris, executor of the last will and testament of T. A. Kramer, which is reversed, and the trial court is directed to enter judgments in favor of the plaintiffs against C. L. Harris, as executor in accordance with this and the opinion rendered in Ramsey v. Adams, 122 Kan. 675, 253 Pac. 423. The judgment in case No. 27,688 in favor of G. L. Ramsey and Alice M. Ramsey is reversed as to all the defendants who appeal except C. L. Harris, executor, which is affirmed, and the trial court is directed to enter judgment in favor of all the defendants who appeal in that action. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued to recover $4,010 for the conversion of oil-well casing. Judgment was rendered in favor of the defendant Gano. No judgment was rendered concerning defendants Byers or Huffine. The plaintiffs appeal.
Special questions were answered by the jury as follows:
“1. What was the fair market value of the pipe in controversy in 'the O’Hall oran well at the time the plaintiffs made their demand on Gano in September, 1924? A. $598.
“2. What was the fair market value of the pipe in controversy after it was pulled from the O’Halloran well and racked up or laid on the ground? A. $525.”
George E. Gano, as trustee, owned an oil and gas lease on land in Reno county. S. J. Haynes, under a contract with Gano, drilled a well to a depth of 2,610 feet. Thereafter, on April 16, 1924, Gano, as trustee, entered into a written contract with the defendant D. E. L. Byers to further drill the well from the depth of 2,610 feet to 3,500 feet for $10,000. Byers agreed to “furnish a string of 24-pound 6%-inch casing, and a string of 20-pound 5%c-inch casing for the completion of said well.” The contract also provided that—
“Second party hereto agrees when he shall have completed said hole to leave all material, tools and equipment mentioned in exhibit A on said property, but second party shall have the right to then remove all additional tools and pipe placed thereon by him without interference.
“It is further agreed that when party of the second part has completed the well that he shall have the use of said tools with which to pull his 6%-inch and 6%i!-inch casing, providing same is done at once, and such fuel oil as remains shall be left for the owner of said tools to use without cost to him.”
On May'2, 1924, D. E. L. Byers entered into a contract with the plaintiffs by which on certain terms and conditions they agreed “to furnish the use of the following-described used oil-well casing” to Byers:
“Approx. 2,700 lineal feet of 6%-inch 24-lb. casing valued at list price of $1.37 per foot, with rental specification of .27%, (cts.) per foot, and with an agreed selling price, (if purchased within terms of this contract) of $1 per foot ... all of which shall be inspected, accepted finally, and received by second party at such points, and by him transported, at his own expense, from such points to the Castleton well in Reno county, Kansas, located about 1% miles in N. W. from Castleton, Kansas, and which may be used in and upon said well, in the regular course of procedure in the completion thereof, for a period of ninety days from the date hereof.
“Said casing and all the collars and protectors necessary therewith shall be and remain the sole property of the aforesaid joint owners. . . .
“In consideration of which the party of second part agrees to handle and to have handled all of the said casing in a careful and workmanlike manner at all times, and to return the same properly fitted with protectors, on or before expiration of the term provided, in as good condition as when received, ordinary wear and tear alone excepted. . . .
“Party of the second part agrees to at. all times make available to the first parties the free and unobstructed use of all necessary rigs, tanks, tools and equipment, for the pulling and removal of the casing from the said well in the event that he shall not either redeliver same as agreed or comply with the terms of this contract as to extensions of time, or any of the other terms of this contract, and second party hereby binds himself, his heirs or assigns, as responsible to first parties for any proper expense they may incur in pulling, recovering, and redelivering said casing to themselves, or for any casing lost in such recovery, and redelivery, in the event of his failure to so comply with this contract.”
That contract did not describe any land. It was signed and sworn to, but it was not acknowledged. It was recorded in Reno county.
Byers obtained the casing, for the conversion of which this action is brought, used it in the well which by him was drilled to a depth of 3,200 feet, when he became financially involved and could not drill any further. A settlement was made between Gano and Byers by which the latter “stepped down and out.” At that time 700 feet of the casing that had been furnished by the plaintiffs was racked on top of the ground; the remainder was in the well. An arrange•ment was then made by Gano with L. A. Douglas to finish drilling the well to the depth of 3,500 feet.
This litigation has heretofore been before this court. The former decision is found at Chisler v. Byers, 121 Kan. 478, after that decision the case was remanded to the district court, where it was again tried. The present appeal is from a judgment on that trial, which was by a jury, and a verdict was rendered in favor of the defendant Gano. Outside the recorded contract between the plaintiffs and Byers, the abstracts do not show any evidence which tended to prove that Gano had any knowledge of any claim of the plaintiffs to the pipe furnished by them until the settlement between Gano and Byers, when the latter ceased drilling in the well. The evidence of Gano tended to prove that he did not know anything of the claim of the plaintiffs until they demanded the pipe from him. The evidence of the defendant Gano also tended to prove that at the time the demand was made on him by the plaintiffs for the casing, he told the plaintiffs that they could have the casing; and that he would furnish the tools and oil for them with which to pull the casing. Pie also told them that if they damaged the well in so doing they would be liable to him for the damage done. They did not attempt to take the casing, but immediately commenced this action.
1. Complaint is made of the instructions. The plaintiffs requested certain instructions, which were refused. The court gave other instructions, which the plaintiffs argue were erroneous. The effect of the instructions requested by the plaintiffs was to direct the jury to return a verdict in favor of the plaintiffs. The requested instructions were also to the effect that the threat of the defendant Gano to hold the plaintiffs responsible for damages if they injured the well in removing the casing was guch an unwarranted interference with the rights of the plaintiffs as constituted a conversion of the casing, and that the one question for the consideration of the jury was the value of the casing. There was conflicting evidence concerning that value.
One instruction requested by the plaintiffs reads as follows:
‘'You are instructed, gentlemen of the jury, that whoever interferes with or stands in the way of the true owner of property asserting and securing his rights to its possession, thereby interfering with the owner’s actual rights, subjects himself to the remedy sought to be enforced in this suit. Any distinct act of dominion wrongfully exerted over one’s property, in denial of his right, or inconsistent with it, is a conversion. The action of trover being founded on a conjoint right of property and possession, the act of the defendant which negatives or is inconsistent with such rights amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant. Nor is it necessary that it should be shown that he had applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s rights? If he does, that is, in law, a conversion, be it for his own or another person’s use.
“You are therefore instructed that the refusal of the defendant George Gano to deliver said pipe to the plaintiffs and the retention by him of said pipe for use in said oil well constituted a conversion of said property under the law, and your verdict should be for the plaintiffs for the full value of said pipe and interest from the date of said demand.”
That instruction was given with these words added: “A mere temporary exclusion is not enough.” By the instructions given, the court submitted to the jury the question of the conversion of the casing, and by the quoted instruction requested by the plaintiffs, with the added words, the court told the jury what constituted a conversion. Although it is earnestly argued that it was error to refuse to give the instructions requested and that the instructions given were erroneous, the court is unable to agree with the argument. There does not appear to have been any error in the instructions given nor in refusing to give those requested.
2. When this action was here before, this court said:
“The owners of some casing leased it for ninety days. The lessee used it in a well which he was drilling under contract, but which he later abandoned, making a settlement with the owner of the well, in the course of which he told who owned the casing. The ninety days having expired, the owners of the casing demanded it' of the owner of the well, who refused to consent to their taking it except on condition they would not injure the well in removing it, saying it was theirs and they could go and get it, but if they pulled it he would sue them for damages. It is held that upon a showing of these facts in an action brought by them for conversion a demurrer to the evidence should have been overruled.” (Chisler v. Byers, 121 Kan. 478, 247 Pac. 850.)
That was an appeal from a judgment in favor of the defendants rendered on their demurrer to the evidence introduced by the plaintiffs. On the last trial the evidence was conflicting concerning what was said by Gano in response to the demand of the plaintiffs for the pipe.
Mr. Stone, one of the plaintiffs, testified that—
“I showed him my contract which had been on record here all that time, and I asked him to either pay some rental on it or pay me for it, or return it. He wouldn’t do any one of those things. I said, ‘What do you expect me to do?’ He said, ‘It is down there; you can go and get it, but if you do I will sue you for damages.’ ”
Mr.’Gano, one of the defendants, testified:
“There is 700 feet of this pipe that is on the rack that has never been in the well since we took it over. You can take that. . . . There is 2,300 feet that is in the well, you can pull that if you want it. . . . You can have my tools and rig and I will furnish you the oil and be glad to have you go and get it because I cannot get a contractor to take this well — take the contract job on this well on account of the condition of this pipe. . . . Your pipe is worthless. I do not want it anyway. It is unfit to go in an oil well in my judgment. ...
“I told him there had been $35,000 approximately invested in the well, and that if he pulled that pipe he was taking a long chance in damaging the hole. That it cost a lot of money, that we would probably hold him responsible for the damage if he damaged the hole in pulling the pipe.”
On this question the court instructed the jury as follows:
“You are instructed that it is your duty to determine whether in the conversation between the plaintiffs and the defendant Gano, at the office of the defendant in Hutchinson on or about September 20, 1924, when the plaintiffs made a demand upon the defendant Gano for the possession of the pipe, the statements made by the defendant Gano in answer to the plaintiffs’ demand amounted to an unlawful conversion of the pipe in controversy under the law as herein given you. It is for you to determine whether the plaintiffs’ statement of the conversation or the defendant’s statement is correct, and from the statements which you find were made to determine the question of the liability of the defendant Gano in this case.”
“And in this connection you are instructed that if you find the statement made by the defendant Gano when plaintiffs made demand upon him for the possession of the pipe on or about September 20, 1924, was in effect and amounted to a denial or repudiation of plaintiffs’ right to the casing, which right they undoubtedly at the time had provided they exercised due skill and caution in pulling casing, doing only such injury to the well as necessarily would result from pulling the pipe in an ordinarily careful, skillful and cautious manner, then and in that case such a refusal would be sufficient to authorize you to find a conversion of the pipe in controversy on the part of the defendant Gano. On the other hand, if you fail to find that said statement of Gano amounted to a denial and repudiation of plaintiffs’ said rights, then your verdict should be for the defendant Gano.”
This instruction should be considered in connection with the instruction requested by the plaintiffs which, somewhat modified, was given by the court. It has been quoted.
The contract between the plaintiffs and Byers by which the latter leased the pipe from the former was not a chattel mortgage; it did not convey nor affect real estate; it was not acknowledged; it was not entitled to be recorded; and recording it did not impart notice of its contents to Gano. (Meskiman v. Day, 35 Kan. 46, 10 Pac. 14; Fischer v. Cowles, 41 Kan. 418, 21 Pac. 228.)
Whether or not there had been a conversion of the pipe by Gano was a question of fact to be determined by the jury under proper instructions. Such instructions were given, and the question of fact was found against the plaintiffs by the jury. The verdict is conclusive on that question.
The plaintiffs argue that there was error in the admission of evidence and in comments made by the court in the presence of the jury during the trial of the case. A number of complaints are made concerning the admission of evidence and concerning the comments of the court. Each of these has been examined. Not one of them appears to have been prejudicially erroneous. The record discloses that the trial was a closely contested one, and that there was colloquial controversy between the court and counsel for the plaintiffs. There does not appear to have been any error prejudicial to their rights.
The judgment is affirmed.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin enforcement by criminal prosecution of an ordinance of the city of Oxford, a city of the third class, enacted pursuant to the power conferred by statute to grant permits to mine oil or gas within the city limits under such restrictions as shall protect public and private property (R. S. 12-106), and to enact ordinances for the maintenance of the peace, good order, and general welfare of the city (Laws 1925, ch. 123). The district court refused to grant a temporary injunction, and plaintiffs appeal.
The application for temporary injunction was submitted on the verified petition. The petition alleged that the city is divided into lots and blocks of various dimensions, but generally of small length and breadth and containing only a very small amount of land. Plaintiffs are the owners of a rectangular tract of land 20 by 70 feet, lying within the city, and are engaged in the business of exploring for and producing and selling oil and gas. Underlying the city and the territory immediately, surrounding it is a vast underground deposit of oil and gas, from which various producers were extracting oil and gas, and a permit had been issued to drill for oil and gas in the block in which plaintiffs’ land was situated. Plaintiffs were drilling for oil and gas on their tract, when their operations were suspended by threat of proceedings to enforce the ordinance by prosecution and successive prosecutions. They had already expended $15,000 in their effort to avail themselves of the mineral deposits underlying their land, and unless they were allowed to proceed their land would be drained of its oil by other producers, to their loss in a sum unknown but exceeding $100,000. Some of the persons operating in the city had not secured permits and, the city had not passed any zoning ordinance. A copy of the ordinance was attached to the petition. The ordinance provided for but one permit to a block, and for a bond to be given by the permit holder securing payment to lot owners of a royalty for oil and gas extracted.
The foregoing are all the facts stated in the petition bearing on the question whether a temporary injunction should issue. The remainder of the petition was devoted to interpretations of the ordinance: That plaintiffs could not secure a permit under it; that its-provisions were arbitrary and unreasonable; that the ordinance was not the result of a proper exercise of the police power; and that it violated rights protected by provisions of the constitution of the United States.
The petition is to be considered not as a pleading, but as an affidavit. The order of the court was simply that the application should be denied. Plaintiffs argue that various provisions of the ordinance are invalid and that the ordinance as a whole is invalid; but this-court is not able to say the district court decided any of those questions adversely to plaintiffs. The petition did not squarely allege that, any well was actually in operation which was in fact draining oil from plaintiffs’ land, or would begin to do so at a future date ap proximately fixed. Just what loss plaintiffs might suffer from a temporary suspension of drilling operations to prevent arrest under the ordinance did'not appear. To what extent the public interest might suffer if operation of the drilling permit system established by the ordinance were stopped by temporary injunction did not appear. Further showing of facts was necessary to qualify plaintiffs to raise some of the constitutional questions presented by the petition. For example, the petition did not reveal when plaintiffs bought their lot. They said they had owned it “a long time,” which gave the court no information respecting date of acquisition. If they purchased after the permit for their block was regularly issued, they cannot urge that the ordinance is invalid because they could not have qualified for a permit. Validity or invalidity of other provisions of the ordinance depended on their application to facts not disclosed by the petition. Very likely the court concluded it would be wise to postpone its decision of the very important constitutional questions raised until the case could be heard on the merits. If so, injury to plaintiffs so grave and so manifest as to make the postponement an arbitrary exercise of the court’s discretion is not disclosed. District courts have a large discretion to grant or refuse temporary injunctions, and an exercise of such discretion will not be interfered with unless the power has been abused.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages alleged to have been sustained by plaintiffs because of false representations made by defendants as to the value of certain bank stock traded to plaintiffs for a garage. Plaintiffs recovered, and defendants have appealed.
The plaintiffs, H. H. Vernson and members of his family, owned all the capital stock (one share was nominally held by C. E. Cummings for them) of the McCarthy Motor Company, a corporation, which owned and operated a garage at Blue Rapids, Kan., which plaintiffs were operating. They were anxious to sell the garage, which included, of course, their stock in the corporation. They tried to sell it themselves, and asked traveling salesmen and others to assist them in finding a buyer. The defendant, E. M. Baker, was a traveling salesman for automobile accessories and called at plaintiffs’ garage on regular trips once in three weeks. Plaintiffs solicited him to find them a buyer for the garage. Later, and in November or December of 1921, Baker proposed buying the garage himself if he could trade some bank stock he had for it. He represented that he owned 65 shares of the capital stock of the Farmers State Bank, of Washington, Kan., of the par value of $100, which he proposed to trade plaintiffs at the value of $135 per share for the stock in the McCarthy Motor Company at the actual value thereof based upon an inventory of the property belonging to it. The proposed trade was talked over by the parties on several occasions, and dragged along for some months, but was finally closed by a written agreement, March 4,1922, executed by H. H. Vernson as president, on behalf of the motor company, and by E. M. Baker. This provided for Baker to buy the property of the motor company at the agreed value of $6,189, and pay for the same by assigning to plaintiffs 35 shares of the capital stock of the Farmers State Bank of Washington, at the agreed price of $4,725 and assume certain itemized obligations of the motor company, which made up the difference. The garage was turned over to Baker at once, and in a few days plaintiffs' received the shares of bank stock as the agreement provided. The bank failed April 24, 1922, and the stock proved to be of no value; the receiver has been able to pay from its assets only 37% per cent to its creditors. Baker disposed of the garage within 30 days, at a substantial loss from the price at which he took it.
On April 26,1922, plaintiffs filed this action against Baker, alleging the facts concerning the trade, as above stated, and that Baker had made false and fraudulent representations as to the value of the bank stock, viz.: (1) That because of the prime condition of the assets of the bank its stock was worth in cash $135 per share; (2) that all the commercial paper owned by the bank was-good; that no paper was included in its assets except such as was gilt edge and readily collectible at maturity; (3) that shortly prior thereto the stockholders, including himself, had paid a 200 per cent assessment -on their stock, with which all questionable assets had been eliminated; and further alleged that these representations were false, were known by Baker to be false at the time they were made, were made with the intention that plaintiffs should rely on them, and that they did so rely. They prayed judgment for the agreed value of the stock with interest since the date of the trade.
Later plaintiffs obtained leave to make Walter E. Wilson an additional party defendant, and thereafter filed an amended petition, in which they alleged that Wilson was the real owner of .the bank stock, and that he and Baker had wrongly conspired to .falsely represent the value of the bank stock to plaintiffs, and repeated the allegations substantially as previously made. Both defendants filed general denials. Baker, in addition, alleged that plaintiffs had defrauded him by falsely representing the value of the garage property greater than it was, and that they had the Ford agency for the sale of cars, trucks and tractors which they would assign to him, to his damage in the sum of $4,250, for which he prayed judgment. Plaintiffs’ reply to this was a general denial.
The jury returned a verdict against both defendants for $6,042.44, being the agreed value of the bank stock at the time of the trade plus interest at ’6 per cent to the date of the verdict. The court instructed that plaintiffs’ claim included such interest. Defendants complain of this, and argue that this is an action for unliquidated damages in which interest can be allowed from the date of the judgment only, and that the most plaintiffs could recover in this case is $4,725. The point is not well taken. Where one sues to recover damages for the value of property obtained from him by defendant by fraud or deceit, the measure of his damages is the value of the property at the time it was so obtained plus interest from that time to the date of the judgment. (Thompson v. Howard Motors Co., 122 Kan. 339, 341, 252 Pac. 468; Shriver v. National Bank et al., 117 Kan. 638, 649, 232 Pac. 1062.) If this were not so the defendant would be allowed to profit by his own fraud to the amount of the use or value to him of the use of the property for that time. The law contemplates no such profit in such a case.
Appellants contend that if fraudulent representations as to the value of the bank stock were made, plaintiffs did not rely on them, but made an independent investigation of their own, on which they relied. There was some evidence to support that theory, a part of which was controverted, but there was much to the contrary. To sustain a recovery it is not essential that the fraudulent representations were the only thing relied upon; it is sufficient if they are a part of the moving cause, and without them plaintiffs would not have parted with their property. (State v. Terrill, 87 Kan. 745, 749, 125 Pac. 65.) The rule is the same in civil actions. (Tatlow v. Bacon, 95 Kan. 695, 699, 149 Pac. 745; 26 C. J. 1165, and cases there cited.)
As to the defendant Baker, it is not seriously contended- that the evidence does not support the verdict. It is true he testified that he made no representations as to the value of the bank stock, but there is much evidencé to the contrary. It was clearly established that the bank stock was valueless, or practically so, at the time of the trade, and had been for months, and that Baker knew, or should have-known, that fact. As to him the verdict is well supported. .
As'to-the defendant Wilson, it is earnestly contended' that there is no -substantial evidence that he made any -false representations as to the value of the bank stock; of that he ever agreed or conspired' with Baker for him to make such representations, or that he was interested in or had anything to-do with the trade. This presents the only difficult question in the case. It would serve no useful purpose to detail all the facts and circumstances disclosed by the record tending to show that Wilson was the real owner of the bank stock and his connection with and interest in the transaction, and to point out the inferences the jury might reasonably draw therefrom. It is sufficient to say that we regard the evidence sufficient to authorize the jury to reach the conclusion that Baker and Wilson were jointly liable.
Finding no error in the record, the judgment of the court below is affirmed.
Hopkins, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy presents the question whether both mother and minor daughter of a deceased workman are entitled to recover under the workmen’s compensation act, both during the deceased’s lifetime having been dependent on him for support. Compensation was allowed both and the employer appeals.
The deceased, Terrence Winchester, was employed as a common laborer by defendant, a sewer construction company. From an injury sustained while in the course of such employment, death resulted. The company refused to arbitrate and action was brought. The deceased at the time of his death was married and had one daughter, five years old. He was residing with his mother and apart from his wife and daughter, they residing with the wife’s parents. The wife had voluntarily abandoned the deceased. The deceased’s average yearly earnings were such that the maximum amount of compensation to be allowed was $2,622.36. The jury answered special questions to the effect that deceased’s mother was entitled to forty per cent of such amount and the minor daughter to sixty per cent. No question is raised of the amounts awarded, only whether a judgment in favor of the minor child of the deceased precludes a judgment in favor of his mother.
The statute reads:
“(;) ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family’ for the purpose of this act, means only widow or husband, as the case may be, and children; or if no widow, husband, or children, then parents or grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters.” (R. S. 44-508.)
The defendant contends that the wording and punctuation of the statute is so clear and unequivocal that any other interpretation than to preclude the parents of a deceased workman, when a minor child is entitled to compensation, would do violence to plain and unambiguous language; that the widow or husband, as the case may be, and children are in one class, while the parents or grandparents are in another. We cannot concur in the defendant’s contention.
“In the enactment of the compensation law, the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust and therefore, a statute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversy and litigation and place the burden of accidental injuries incident to such employment upon the industries themselves or rather upon the consumers of. the products of such industries.” (McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.)
Three main elements were considered — compensation, dependents, and the workman’s family. Compensation was made to depend mainly on the average earnings of the injured workman for periods preceding his injury. Maximum and minimum limitations were placed on the average of such earnings. Effort was made to transmit the compensation to those dependent on the workman for support. In that effort the legislature endeavored to say that those closer in family relationship to the workman should be -the first provided for, and so degrees of relationship were specified. In other words, the legislature, in the enactment of the statute above quoted, undertook to indicate a priority of dependents rather than to establish classifications under which dependents in one class only would be entitled to compensation. If a workman is injured and death results, the statute fixes a maximum amount of compensation allowable to his- dependents, based upon the average amount of his earnings. The members of his’ immediate family are entitled to his compensation if wholly dependent upon him, but if members of his immediate family - are only partially dependent upon him and other members of his family of a lesser degree of relationship are also dependent upon him, no part of the compensation allowed under the statute is permitted to lapse. The fact that immediate members of his family who are dependents are first entitled to compensation does not preclude others in a lesser degree of relationship, who are also dependent, if compensation is available. The policy of the law is to do justice, not to subvert it. • The interpretation sought by defendant would render the statute, at least in part, inoperative: compensation available, dependents in need thereof and unable to receive it. Under the facts in the instant case, such interpretation would do violence to ordinary justice. Such, in our opinion, was not the legislative intent. Another not uncommon case can be suggested. A workman’s wife dies, leaving minor children. The father’s mother assists in taking care of the family, both the children and the workman’s mother being dependent upon him for support. Did the legislature intend to cut her off from compensation in the event of the workman’s death? We think not. The legislature might have provided more apt language to express its intention, but we cannot concur in defendant’s contention that it intended to preclude the mother under such circumstances.
A contention that the decisions in Ellis v. Coal Co., 100 Kan. 187, 163 Pac. 654, and Stokes v. Morris & Co., 107 Kan. 232, 191 Pac. 264, support the defendant’s theory, cannot be sustained. What was said in those cases is not applicable here. Nor can we follow the Alabama supreme court in construction of a similar statute of that state in the case of Ex Parte Todd Shipbuilding and Dry Docks Co., 212 Ala. 477, wherein the workman’s mother was precluded from compensation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to subject the proceeds of the sale of certain real property to payment of a judgment in federal court. The controversy involves validity of an assignment of such judgment to plaintiff. The plaintiff prevailed and defendants appeal.
The facts are substantially these: M. B. Altenburg and F. J. Oyler were sued jointly in federal district court at Fort Scott by Elliott Blackwelder and others, in July, 1923. In May, 1924, Alten burg purchased certain lots in the city of Iola and caused title thereto to be taken in the name of his wife. In September, 1924, Altenburg died. In November, 1924, the action pending in the federal court was revived against his widow as administratrix. Also, in November, 1924, the widow sold the lots in controversy to R. H. and Josephine L. Coblentz under contract, $250 being paid thereon and under the terms of the contract, the balance to be paid thereafter in monthly installments of $40. Papers pertaining to the sale were deposited in the Peoples Home State Bank of Chanute. Judgment was rendered May 25, 1925, against the Altenburg estate and F. J. Oyler for $7,000. In order to prevent levy of execution Oyler procured a loan of $4,000 from the Allen County State Bank, of Iola, and $3,000 from the Iola State Bank, of Iola, and caused an assignment of the judgment in federal court to be made to the plaintiff, F. O. Benson, cashier of the Iola State Bank as security for the loan. Benson brought the present action against Mrs. Altenburg, individually and as administratrix of the estate of her deceased husband, and against Mr. and Mrs. Coblentz, to subject the moneys due on the real-estate contract to payment of one-half the judgment rendered against Altenburg and Oyler. Trial to the court, with ample pleadings for a basis and ample evidence in support thereof, resulted in judgment for plaintiff. The court found generally for the plaintiff and, among other things, that Altenburg purchased the lots in question and caused title to be conveyed to his wife for the purpose of defrauding his creditors, and more especially for the purpose of defrauding the plaintiffs in the action pending in the federal court; that Altenburg was the actual owner of the lots at the time of his death; that the lots should be held subject to the payment of the plaintiff’s claim; that prior to the commencement of the present action, the defendants, Coblentz and his wife, in good faith, entered into the agreement with Mrs. Altenburg by the terms of which they agreed to purchase the property for $3,800; that they took and now hold possession of the property under the contract. The order was that they be required to complete the purchase; that the balance of the purchase price be paid to the clerk of the court to apply on the plaintiff’s claim.
The defendants contend that the action by Oyler, one of the joint-defendant debtors in procuring the loan, having the judgment transferred, etc., operated as a satisfaction and extinguishment of the judgment as to both defendants, leaving nothing to assign; also, that the judgment was not filed in Allen county, became no lien on the Altenburg property, and that until a creditor has an enforceable lien on the debtor’s property he cannot attack his debtor’s conveyance even though it be in fraud of creditors.
Plaintiff contends that the judgment was assigned for collateral security; that it was not intended to be and was not a satisfaction of the judgment.
The controlling question, in our opinion, is whether it was the intention of the parties at the time of execution of the assignment of the judgment that it should operate only as an assignment or in satisfaction thereof; also, whether it was equitable to subject the proceeds of the land in question to payment of the judgment. The intention of the parties, the result of their action in making the loan, and whether there was an assignment of the judgment or a release thereof, were •principally questions of fact. The plaintiff alleged assignment of the judgment for a valuable consideration. Copy of the assignment was attached to his petition and made a part thereof. Defendants denied there was an assignment and alleged satisfaction of the judgment. Plaintiff in a reply denied allegations of defendant’s answer. The evidence showed assignment of the judgment and no intention to satisfy. The court found the issue, as all others, in favor of the plaintiff. There appears no good reason to disturb the finding. It may be said that Oyler was only a judgment debtor the same as Altenburg. If Oyler had sufficient property and paid the whole of the judgment, he would be in the same position as if he were a surety and judgment rendered against him as surety. A surety who pays a judgment against his principal is ordinarily entitled to be substituted to the rights of the creditor. In Crippin v. Chappel, 35 Kan. 495, 11 Pac. 453, and Yaple v. Stephens, 36 Kan. 680, syl. ¶ 1, 14 Pac. 222, the rule was stated that “generally where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor, or in the place of the creditor, such person will be so substituted.” (See, also, Harris v. Frank, 29 Kan. 144; Honce v. Schram, 73 Kan. 368, 85 Pac. 535, 15 R. C. L. 778, 780; Bank v. Opera House Co., 23 Mont. 33, 75 Am. St. Rep. 499.) Nor does there appear any equitable reason why the proceeds of this property fraudulently conveyed by Altenburg should not be applied in satisfaction of his liability. The property in question passed to Coblentz and wife November 1, 1924. Judgment in the federal court was not rendered until May 25, 1925.
The petition in the present action alleged “that the estate of said M. B. Altenburg is practically insolvent and has no other assets of any consequence other than property hereinabove mentioned, and is not sufficient to pay said judgment, and that plaintiff has no sufficient remedy at law, and that plaintiff will lose his said claim unless the proceeds of the real estate hereinabove mentioned be recovered and paid into court to apply upon plaintiff’s said judgment.” There was ample evidence to sustain the allegation, and the trial court’s general finding was conclusive on the question that there was no other property on which a levy could be made. The filing of a certified copy of the judgment with the clerk of the district court of Allen county would have constituted no lien on the money due from Coblentz and wife to Mrs. Altenburg which was owed on the purchase contract. It would have been useless procedure to have filed it, and the law does not require useless acts. The plaintiff was not seeking a lien on the real estate in question, nor to sell the real estate to satisfy the judgment. He was asking to subject the balance of the money due from Coblentz to Altenburg on the contract of purchase to partial satisfaction of the judgment. The filing of a certified copy of the judgment in another county than the one in which it is rendered is for the purpose of giving notice to all persons who might acquire title to the land in the county other than that in which the court rendered judgment. In the instant case no copy of the judgment could be filed in Allen county until it had been rendered. The evidence disclosed that the transfer of the property in question occurred prior to the rendition of the judgment. A judgment of the United States district court for the district of Kansas occupies the same footing as a judgment of the state court and may be made the basis of a creditor’s bill or other like equitable action in a state court. (Bridge Co. v. Fowler, 55 Kan. 17, 39 Pac. 727.) There is much diversity of opinion on the question as to whether or not the judgment creditor must exhaust all process to secure a lien upon the debtor’s property before filing an action in the nature of a creditor’s bill to set aside a fraudulent conveyance. This court has quite uniformly held that he must do so. (See Moyer v. Riggs, 8 Kan. App. 234; National Bank v. Clark, 55 Kan. 219, 40 Pac. 270; Bank v. Chatten, 59 Kan. 303, 52 Pac. 893; Harrison v. Shaffer, 60 Kan. 176, 55 Pac. 881; Breitkreutz v. Bank, 70 Kan. 698, 79 Pac. 686; Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634; Bank v. Ternes, 110 Kan. 475, 204 Pac. 699.) But where, as in this case, the plaintiff shows a valid judgment and it was established that suing out an execution would have been fruitless, the judgment of the district court will not be reversed. Issuance of an execution would have availed no useful purpose. (See Taylor v. Stone and Lime Co., 38 Kan. 547, 16 Pac. 751; Smith v. Hensen, 89 Kan. 792, 132 Pac. 997; Young v. Buck, 97 Kan. 195, 154 Pac. 1010; Bank v. Creek, 101 Kan. 552, 167 Pac. 1053.)
Various other objections to the judgment have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Antone Chikowsky, the appellant, on June 28, 1923, sustained accidental physical injuries arising out of and in the course of his employment by the appellee, the Central Coal & Coke Company, in one of its coal mines in Crawford county, Kansas, aiid on his application for compensation under the workmen’s compensation law of Kansas an arbitrator was appointed by the district court of Crawford county. On July 29, 1925, the arbitrator made an award, which was reviewed and modified by the district court on January 29, 1926, after hearing the applications filed for that purpose by both parties. The award provided that the weekly compensation was to be paid to the injured workman “at the same time, place and manner as plaintiff received his wages while in the employ of said defendant.” The defendant regularly paid the plaintiff the weekly installments as modified by the decree of the court to and including September 27, 1926. On September 30 the company filed with the clerk of the district court an application for an order of redemption of award and caused notice of the hearing of such application to be served on appellant the same day. It deposited the same day $818.40 with the clerk of the district court as the amount of the lump sum calculated on the 80 per cent basis. The appellant did not assent to this amount or accept it as payment, but on the following day, October 1,1926, filed his application for a review and modification of the award on account of his incapacity and disability having increased since the award was modified in January, 1926, and later filed an amended application for the same purpose and caused notice of the hearing of such applications to be served upon the company.
On February 7, 1927, all these applications came on for hearing before the judge of the district court, and after hearing the evidence concerning the application for redemption, he refused the offer of evidence in support of the amended application for review and modification of the award for the reason that plaintiff’s applications for review and modification “were both filed subsequent to the filing of the defendant’s application for an order of redemption of said award,” and granted the application of the appellee for an order of redemption of the award in the sum of $818.40, directing it to be paid to the clerk of the court and ordering the release and discharge of the defendant company from the liability under the award.
The appeal of the plaintiff from this ruling presents two points in connection with the construction of the sections of the statute authorizing review and modification of awards and redemption of awards under the compensation act: First, Is a voluntary deposit-of an estimated amount with the clerk of the district court where the award was originally filed and later modified such a payment as is contemplated by the statute? Second, When is it too late to file an application to review and modify an award? The following are the two sections involved:
“At any time before the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the judge of the district court having jurisdiction, uppn the application of either party, . . . and the court shall hear all competent evidence offered, and if the court shall find that the award ... is grossly excessive or grossly inadequate, or that the incapacity or disability of the workman has increased or diminished, the court may modify such award, upon such terms as may be just, by increasing or diminishing the compensation, subject to the limitations hereinbefore provided in this act. . . ,” (R. S. 44-528.)
“Where payments under an award have been made for not less than six months, the liability under such award may be redeemed by the employer at his option by the payment to the workman of a lump sum equal to 80 per cent of the amount of payments due and unpaid and prospectively due under the award, such amount to be determined by agreement, or, in default thereof, upon application of either party, upon notice to the other party by the judge of the district court having jurisdiction. Upon paying such amount, the employer shall be discharged of and from all further liability under said award.” (R. S. 44-531.)
The estimated amount of the lump sum in this case was exactly the same as the amount found by the court to be due on the 80 per cent basis, but there was no agreement between the parties as to the amount, and not until the court determined the amount could it have been said that it was the correct sum to be paid. The statute indicates the determination of the correct amount shall be reached by agreement or, in default thereof, by the judge of the court. Until such determination has been made, either by agreement or by the court, no estimated sum can be said to be the correct amount for settlement under the lump-sum plan. Again, the payment to the clerk of the court without any order of the court for such is purely voluntary and amounts to nothing more than a deposit, which the plaintiff is not required to accept or seriously consider.
“Merely depositing money due a creditor in a bank or with a third person for the creditor does not ordinarily constitute a payment before the creditor receives notice of the deposit. ... A deposit in a bank to the account of the creditor is not a payment unless the creditor consents to the deposit .as a payment.” (30 Cyc. 1184.)
“The payment must be made at the place agreed upon unless both parties consent to a change of the place. In the absence of any agreement upon the .subject, a debt is payable where the creditor resides, or wherever he may be found; and ordinarily the debtor, in such case, is bound to seek the creditor to make payment to him, provided the creditor is within the state when the payment is due.” (30 Cyc. 1185.)
The award in this case provided when and where the payments were to be made and the statute provides that such designation shall continue until changed by the court.
“The payments shall be made at the same time, place and in the same manner as the wages of the workman were payable at the- time of the accident, but a judge of any district court having jurisdiction, upon the application of either party, may modify such regulation in a particular case as to him may seem just.” (R. S. 44-512.)
Unless we can conclude that such voluntary deposit with the clerk on September 30, 1926, is tantamount to a payment as contemplated by the statute, we cannot say that payment had been made by the company before the plaintiff filed his application to again review and modify the award. The section above quoted provides that he may make such application “at any time before the final payment has been made.” The application to make final payment had been made, more than six months had elapsed from the.date of the award, and the correct amount of money (as later determined) had been left with the clerk, but it was not until February 7, 1927, that the court determined the amount and directed it to be left with the clerk. The evident intention is to give either party the right to have the award reviewed and modified by making application for such any time before final payment, and we cannot conclude that such voluntary deposit is a final payment or that the application of the plaintiff for review and modification, filed one day later than such deposit, was too late to receive consideration 'of the trial court.
“What effect an injury will have on capacity to work is necessarily a matter of prediction in most cases. The arbitrator’s prediction may not accord with the facts disclosed by lapse of time. Capacitj' may increase or may diminish beyond wha't the award contemplated, and compensation should be adjusted accordingly. Therefore, review and modification of the award are provided for at the instance of either employer or employee. A modified award is still likely to rest on prediction, and if the prediction should prove to be wide of the truth, further adjustment to accord with the facts ought to be made. . . . The modified award should be reviewed' and modified, and the only time limitation stated in the statute for adjusting compensation to increased or diminished capacity is ‘an3f time before final payment has been made.’” (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 247-8, 237 Pac. 1056.)
“The statute contemplates that in the time named a change of conditions of the workman may occur, that is, the disability for which an award is made may diminish or increase, so that either party may be warranted in asking for a review and modification of the award. . . . Such a review and modification may be made at any time before the final payment has been made.” (De Millsap v. Century Zinc Co., 123 Kan. 570, 573, 256 Pac. 136.)
The judgment of the trial court is reversed and the cause remanded with instructions to set aside the decree as to the order of redemption of award and hear the application for review and modification of the award. | [
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The opinion of the court was delivered by
Hutchison, J.:
J. H. Markham and G. A. McMullen, in separate actions in the district court of Harvey county, Kansas, sought to obtain personal judgment against S. A. Hunter, W. F. Hopper and A. D. Stewart and enforce mechanic’s liens upon a mining leasehold. The cases were consolidated and tried to the court without a jury. The court made findings of fact which were incorporated in the journal entry, allowed the mechanic’s liens, and rendered personal judgment against Hunter and a judgment for costs in favor of Hopper and Stewart. From this latter part of the judgment Markham and McMullen appeal.
The claim of Markham was for labor performed in drilling a well on the leasehold, and that of McMullen for material furnished and labor performed in the construction of the derrick for that purpose. Each of these claims was based upon a separate contract made with and by Hunter, but it is claimed in each case to have been made for a partnership consisting of Hunter, Hopper and Stewart.
The sole and only question to be determined upon this appeal is whether or not the written agreement of Hunter, Hopper and Stewart, dated August 11, 1924, created a partnership relation between them and made them copartners in the management, control and operation of the leasehold estate. Hunter joins the appellants in maintaining it was a partnership. Hopper and Stewart, appellees, contend the agreement between them did not create a partnership of any kind nor in any way authorize or empower Hunter to obligate them.
The contract recited in substance that Hunter held three-year oil leases on 1,400 acres in Harvey county under contract for a well to be spudded in by September 1,1924, for which leases he was to furnish abstracts of title for the examination of the other two parties and place assignments of the leases in the bank for them; that Hopper was to furnish a complete drilling outfit and casing, which was to remain his property unless the well proved a commercial one, and he and Hunter were to superintend the drilling of the well; that Stewart, in cooperation with the other two, was to sell an undivided one-half interest in the leases on 400 acres and the well for $10,000, which sum was estimated to be sufficient to drill the well. No firm name was suggested. Each party was to receive a one-third interest in the entire acreage except the 400 acres, in which they were to receive a one-sixth interest. Any additional acreage acquired by either, or acreage sold, was to be divided equally between them. The following three portions of the agreement are literally quoted, as they are urged as having much to do with the construction of the contract:
“Whereas, The parties hereto are desirous of associating themselves together for the purpose of drilling a test well for oil or gas on the S. E. quarter, etc.
“If either of the parties to this agreement shall fail to perform the obligations enjoined upon them by this agreement, the interest of the defaulting party in said leases shall thereupon terminate and said interest in said leases shall be forfeited to the remaining parties.
“Neither party shall have the right to bind the other to any obligations or purchases, however, but the other parties or either of them shall have the right and option to acquire a one-third interest each in said leases or royalties in said block, upon the payment to the purchasing party of one-third of the cost thereof; nor shall any of the parties hereto have the right to bind the other on any obligations — it being understood that this instrument does not constitute a partnership.”
Nothing was performed by any of these parties towards complying with his respective part therein. Hunter never furnished or placed in the bank abstracts of title or assignments of leases; Hopper never furnished drilling equipment or casing; and Stewart never sold any interests in the leases, although it is shown he made some effort. Three days after the execution of this agreement, Hunter contracted with McMullen for the construction of the derrick, and twelve days later contracted with Markham for drilling the well. The latter contract was prepared by Hunter to be executed by himself, Hopper, and Stewart, but was never signed by any of them except Hunter. Hopper and Stewart refused to sign or recognize these contracts and disclaimed any interest under the agreement. The following portions of the journal entry give the finding and conclusion of the trial court with reference to these two defendants:
“The court further finds all of the issues herein in favor of said defendants,A. D. Stewart and W. F. Hopper, as against said plaintiff and each of said other-named-defendants and that said plaintiff and said other-named defendants or either of them, are not entitled to any relief herein as 'against said A. D. Stewart and W. F. Hopper or either of them.
“It is further considered, ordered, adjudged and decreed by the court herein that said defendants, A. D. Stewart and W. F. Hopper, were not, at any time, copartners or coowners with said defendant, S. A. Hunter, in the ownership, management, control or operation of said leasehold premises or of any of the personal property locate and situate thereon and that the written agreement existing between said named defendants as introduced in evidence, did not or does not make or constitute said defendants partners or coowners of said premises or said personal property, and that said defendants, A. D. Stewart and W. F. Hopper, are not jointly or severally liable with said defendant, S. A. Hunter, to said plaintiffs and said defendant and cross petitioner, G. A. McMullen, for the amounts so adjudged and decreed to be due and owing, as aforesaid.”
In the first place, it is quite apparent that this agreement does not create a partnership relation in prcesenti and at most could only be an executory partnership, because throughout it indicates a future purpose or intention. Nothing was in fact shown to have been done toward its creation at the time the contract was executed. Each party had something to do before it became effective, and if it is an executory agreement it does not create a partnership until the specified contingencies have happened.
“Persons who have entered into a contract to become partners at some future time, or upon the happening of some future contingency, do not become partners until the agreed time has arrived or the contingency has happened. Whether a partnership exists is determined by ascertaining from the terms of the agreement whether any time has to elapse or any act remains to be done before the right to share profits accrues; for the parties will not be partners until such time has elapsed, or the act has been performed. The mere agreement to form a partnership does not of itself create a partnership; nor does the advancement by one party of his agreed share of the capital.” (30 Cyc. 358.)
However strong the language of the agreement may be to the effect that the parties thereto are not creating a partnership or intending to create one, it is not controlling in a case like this where the controversy is between them and third parties instead of among themselves. In other words, it is not what the agreement says it is nor what the parties thereto intended it to be, but what it is in fact. Neither does the fact that the contemplated united effort may be limited in duration or to one project only prevent the arrangement entered into from being a, real partnership. We fully concur with appellants that these features alone should not in themselves prevent the relationship created by the agreement being held to be a partnership.
We see no inconsistency between the provision in the agreement for forfeiture and the contingency of performance by the individual signers. Such is decidedly appropriate in the case of these appellees who entirely failed to perform. Again, it is said they should not be relieved from the binding force of a contract by reason of their own failure to perform. This would be the rule if the agreement had not definitely provided for such forfeiture of interest; besides, in this case the evidence shows all parties to the agreement completely failed in substantially every particular. In many cases cited there is evidence of the parties holding themselves out to be partners or permitting it to be done. The evidence in this ease is strongly the other way, and consistent effort was made by the appellees to inform third parties that they were not partners. In the case of Wade v. Hornaday, 92 Kan. 293, 140 Pac. 870, the court said:
“Partnership is a matter of contract and courts will not create such a con tract against the will of a party. A definition of partnership which is at once accurate, comprehensive and exclusive is extremely difficult. . . .” (Syl. ¶ 1.)
“In this case it is held that an arrangement between three persons for a division of the net profits accruing on certain sales of shares of stock in lieu of office rent and services furnished by one, advertising and printing furnished by another, and the services of the other in the sale of the stock and in the advertising and correspondence, did not create a partnership in the sense that one could bind the others by a contract made in the name of all.” (Syl. ff 2.)
In the case at bar there was to be no sharing of profits, but when the agreement was consummated each was to have a separate and distinct interest in the leasehold. Specific provisions were made to meet expenses, and to avoid incurring any additional ones Hunter’s sole duty was to assign the leases and furnish abstracts of title thereto and assist Hopper in superintending the drilling. The authority of a partner is similar to that of an agent, which is not established by his own assertions but by those he represents. There is certainly no authority in the agreement here under consideration for Hunter to bind Hopper or Stewart. We think the trial court construed the agreement correctly as not creating either a commercial or trading partnership or a mining partnership in the sense of enabling Hunter to bind the other parties to the agreement. It completely lacks the elements of coowners or cotenants to make it a mining partnership. (18 R. C. L. 1200; 40 C. J. 1147-48.)
There is in our judgment very little similarity between the contract and conduct of the parties in this case and the contract and conduct of the parties in the case of Bovaird Supply Co. v. Wallace, 122 Kan. 54, 250 Pac. 1073. A careful comparison emphasizes the wide distinction of fact and justifies an entirely different conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a prosecution of Henry Tabb for selling and having in his possession a certain compound, salt, derivative and preparation of opium commonly known as morphine. He was convicted upon four counts, and appeals.
It appears that he, with fourteen others, was arrested prior to August 9, 1926, and had a trial in the police court which resulted in conviction. Appeals were taken to the district court. It appears that this case, with the others mentioned of the same nature, had been assigned for trial on November 18, 1926. On the morning of the 18th motions to quash the information were filed and sustained, and upon application leave was given to the state to file amended informations. On the morning of the 19th the amended informations were filed and a motion to quash them was heard and overruled. At that time a motion was filed by the defendants, including Tabb, for a continuance on the ground that there was not sufficient time or opportunity to prepare for trial on the amended information. This motion was overruled and the cases were set down for trial on the afternoon of that day. Others of the narcotic cases were tried on the afternoon of that day, but that against the defendant was not begun until the following day, November 20. When the trial was reached on that day the parties entered into the following stipulation:
“It is hereby stipulated between the state and the defendant, that the evidence in this case will be from the same witnesses as in the case of State v. Harrison, No. 3,700, and that it will show practically the same state of facts. It is further stipulated that if the court is satisfied that the evidence in the Harrison case was sufficient to sustain a conviction, he may find the evidence in this case is sufficient to sustain a conviction upon the several counts, and may pass judgment upon such conviction the same, and to the same extent, as if they had been regularly presented to the jury and by a jury found guilty upon the several counts. The same objections to be considered in the stipulation as in the other cases.”
The record of the trial in the Harrison case is included in the abstract, and among other things shows that Harrison was convicted.
The first contention is that the information was defective in that it did not state the names of the persons to whom the narcotics were sold. While the names might have been stated in the charge it was not absolutely necessary. The information was substantially in line with the language used in the definition of the offense, and ordinarily that is enough. It is required that the charge shall be sufficiently specific to enable the defendant to make his defense, but an omission of a detail which might have been alleged but which did not mislead or hinder the defendant in making his defense cannot be used to overthrow a conviction. (State v. Reed, 119 Kan. 467, 239 Pac. 749.) In the present case the defendant could not have been misled or hampered in making his defense. The trial in the police court furnished him information as to the persons to whom sales were made, and it appears that their names were indorsed as witnesses on the information filed in the district court. Defendant argued that as the legislature had provided that charges under the prohibitory liquor law did not need to set forth the names of persons to whom liquor was sold, it -necessarily follows that but for that provision the names of purchasers must have been set forth, and he insists that the same rule should be applied to narcotic cases. However, in City of Junction City v. Webb, 44 Kan. 71, 23 Pac. 1073, a prosecution for the violation of a city ordinance, it was held that a complaint which did not state the names of persons to whom liquor was sold was not defective, although the ordinance did not contain a provision making it unnecessary to name the purchasers of the liquor. There are many authorities to the effect that an information or indictment otherwise sufficient will not be quashed because third persons or purchasers are not named. Some of these are cited in State v. Schweiter, 27 Kan. 499, 512.
There is a contention that the court erred in overruling defendant’s motion for a continuance and requiring him to go to trial so soon after the amended information was filed. As we have seen, there had been a trial of defendant, as well as a number of other defendants, on the charges in the police court and appeals had been taken to the district court. There the county attorney filed informations and undertook the prosecution of the cases, and had indorsed thereon the names of the witnesses who had made the purchases. The amended petition differed slightly as to the narcotics had in possession and sold by the defendants. In the original information, they were charged with the unlawful possession and sale of “certain opium or cocoa leaves or a compound salt derivative or preparation thereof,” whereas the amended information charged the unlawful possession and sale of a “certain compound, salt derivative and preparation of opium commonly known as morphine.” The witnesses’ names indorsed on the amended information were the same as those indorsed upon the original one, with the single exception of a witness, who was a chemist, called as an expert to testify as to the nature and content of the compound. In view of the circumstances mentioned, the defendant had fair opportunity to prepare for trial, and, besides, he had agreed to submit his case to the court on the evidence taken on the previous day in another of the cases, and it is not easy to see that the refusal of further time was prejudicial error. It may be said that the four witnesses who investigated the conduct of the several defendants, including Tabb, were federal narcotic agents, or persons employed by the United States to make purchases and ascertain who were selling morphine in that neighborhood, and the testimony of these persons, it appears, was used in all the cases tried. It is obvious that the defendant was reasonably well informed as to the nature of the charge and that he could easily have learned what witnesses the state intended to call in support of the charge. He had from the morning of November 19 to late in the day of November 20 in which to prepare for trial. It appears that during that time'a number of other narcotic cases were tried, in fact, all except one against Harrison and that of the defendant, and that convictions were obtained on those that were tried. He necessarily gained a good deal of information as to the witnesses and the evidence to be given before his case was called for trial. The refusal of the continuance cannot be regarded as a ground of reversal.
Another point advanced is that the evidence and stipulation already quoted furnished an insufficient basis for the conviction. It must be assumed that the stipulation was made by counsel in good faith. The stipulation might have been more detailed and definite in its terms, but we find no difficulty in determining its import. It was agreed that the same witnesses would testify against defendant as would testify against Harrison, and the Harrison case resulted in a conviction. The substance of the stipulation was an agreement that if there was a conviction in the Harrison case the defendant might be adjudged guilty on the several counts charged against him. Under the circumstances we do not feel called upon to do any refining of the language of the stipulation or to place any technical interpretation upon it. It was sufficient to warrant the judgment.
The final point advanced is that the statute itself did not warrant the conviction. It is said that the prosecution was based upon R. S. 65-615, and that at the time of the judgment no penalty had been prescribed for its violation. The prosecution was manifestly under R. S. 65-616, which provides that it shall be unlawful for a person to keep or have in his possession or under his control opium, coca leaves, or any compound, salt; derivative or preparation thereof, or to sell or to furnish any of the drugs to another, except physicians, dentists, veterinary surgeons, .registered nurses, or registered pharmacists. It then provided that any person violating the provisions of the section shall be deemed guilty of a misdemeanor and on conviction fined not less than $100 nor more than $500 and imprisonment in the county jail not less than thirty days nor more than six months. The other section (R. S'. 65-616) provides .for the regulation of the sale or dispensing of such drugs by those entitled under the law to use them. It requires certain forms to be used for blanks and the preservation of the orders made under it, so that the evi dence should be readily accessible to inspection of officers. This section did not prescribe a penalty, but at the last session of the legislature the section was amended and a penalty was added making a violation of the regulations a felony, and prescribing a penalty of a fine of not less than $500 nor more than $5,000, with imprisonment not less than one year nor more than seven years in the penitentiary. An examination of these sections leaves no doubt that R. S. 65-615 as it existed when the offenses were committed and the trial had authorized the imposing of the penalties that were adjudged by the court.
Finding no error in the proceedings the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J-.:
This was an action to quiet title to the oil and gas rights in a half section of land.
The main facts were these: On January 22, 1917, the north half of section 2, township 33 south, range 17 east, in Labette county, was owned by the Oswego Land and Cattle Company. The plaintiff, Fred Perkins, was the principal stockholder of that company. On that date it executed an oil and gas lease of the property to Mattes Brothers, of Joplin, Mo., on usual terms, needless to repeat.
Sometime prior to January 25, 1919, Perkins acquired the title of the Oswego Land and Cattle Company, and negotiations for its purchase were begun by the defendant, H. C. Finley. Some oil was then being produced on the property under the lease held by Mattes Brothers. Perkins offered to sell the half section outright for $35 per acre, or for $25 per acre but reserving the oil and gas rights to himself. Finley decided to buy on the latter térms, and January 25, 1919, a written contract to that effect was executed by Perkins and Finley. After stating other details of the agreement, the contract provided:
“Fred Perkins reserves all oil and gas rights and rights to lay pipes and do all other things necessary to the production and shipment of oil and gas, according to the terms of a commercial lease.”
Pursuant thereto, Perkins and wife executed a deed to the half' section, specifically reserving the oil and gas rights; Defendants Finley and wife, after examining this deed, stated that they preferred to have the matter of the grantor’s oil and gas rights -embodied in a separate instrument. Perkins assented to that suggestion, and accordingly he and his wife made a deed of general warranty in favor of the defendant, Anna S. Finley, wife of H. C. Finley, and Finley and wife executed a separate instrument to Perkins granting to him “all the oil and gas” in and under the premises described, “subject to one certain oil and gas lease [that of Mattes Brothers] now of record.”
Following the execution of these instruments, Finley and wife entered into possession of the property. A year or two later, the oil production haying ceased, the Mattes Brothers’ lease was surrendered to Fred Perkins for cancellation.
On February 18,1926, Perkins leased the oil and gas rights of the premises to the plaintiff, C. S. MacLorinan, and within a few months thereafter MacLorinan brought in a gas-producing well. Finley and wife laid claim to the landlord’s royalty as well as to a balance of royalties yet in the hands of the Prairie Oil and Gas Company, through which concern the oil and gas production of the property was being marketed.
These claims of defendants precipitated this lawsuit. On issues joined and the evidence adduced, the trial court made findings of fact and gave judgment for the plaintiffs, Perkins and his lessee, MacLorinan.
Finley and wife appeal. They rely on the unqualified recitals of their deed of general warranty from Perkins, and say that their reciprocal grant of the oil and gas rights to Perkins is void. In support of this somewhat unusual position, defendants invoke the rule which forbids the introduction of parol testimony or other extraneous facts or circumstances to qualify, impair, alter or impeach the plain and unequivocal terms of a written instrument. Their deed from Perkins, they say, contains an unqualified grant of every right and interest Perkins had in and to the premises described therein, and they ring the changes on the covenants of warranty. Such contention is well enough in its way, but here the warranty deed from Perkins to the Finleys was only a part of the writings which evidenced the contract of the parties. The complemental instrument executed reciprocally by the Finleys granting and confirming to Perkins the oil and gas rights was just as much a part of the same contract and just as immune from impairment, alteration or im peachment as the deed from Perkins on which the defendants so confidently rely. The written agreement for the purchase and sale of the half section, and the Perkins deed to Mrs. Finley, and the reconveyance o'f the gas and oil rights to Perkins should be considered as integral parts of a single transaction so far as determining the respective interests of the parties in this land is concerned. All this is settled law. (Windmill Co. v. Piercy, 41 Kan. 763, syl. ¶ 3, 21 Pac. 793; Kurt v. Lanyon, 72 Kan. 60, 82 Pac. 459; Insurance Co. v. Hanks, 83 Kan. 96, 110 Pac. 99; Roseman v. Nienaber, 100 Kan. 174, 166 Pac. 491; 13 C. J. 528-530.)
It is also well settled that the true consideration for a deed can be shown by parol or other evidence. (Roseman v. Nienaber, supra, syl. ¶ 2; Shields v. Johnson, 124 Kan. 155, 257 Pac. 926; 10 R. C. L. 1039-1044.) Nor does the fact that the complemental instruments do not in terms refer to each other detract from their significance as integral and related parts of one contract. (Houck v. Frisbee, 66 Mo. App. 16; Advertising Co. v. Publishing Co., 146 Mo. App. 90; 13 C. J. 528.) And this is also true although the two or more instruments evidencing the different parts of a single transaction do not bear the same dates and were in fact executed on different dates (13 C. J. 529), although no presumption may be indulged that separate instruments of different dates executed by the same parties pertain to a single transaction. (In re Miller's Estate, 78 N. Y. Supp. 930.) Here the matter was not left to presumption. Abundant competent evidence was adduced to show that the contract for purchase and sale dated January 25, 1919, the deed of February 5, 1919, and the reconveyance of the oil and gas rights dated February 21, 1919, were all.pertinent parts of a single transaction.
It is contended that the “lease” from the Finleys to Perkins was a nullity because at the time they executed that instrument they did not own the oil and gas rights. It is quite true that they did not then “own” the oil and gas rights. They never have owned them. They belonged to Perkins, subject to the prior lease in favor of Mattes Brothers, with which defendants have no concern.. When pursuant to the arrangement of the parties for the sale of the land without the oil and gas rights to the Finleys, a deed of general warranty was executed by Perkins to Mrs. Finley, she, for the time being, and until the reciprocal instrument which defendants choose to denominate a “lease” was executed by them to Perkins, might conveniently be called the nominal title holder of the gas and oil rights, although Perkins never ceased to be -the actual owner thereof.
It is also suggested that if the “lease” from the Finleys to Perkins ever had any validity, the rights of Perkins have been forfeited for his failure to develop the property. But, as we have seen, Perkins never parted with his oil and gas rights; his title thereto is as good as is defendants’ title to the surface and all other rights and interests in the property not claimed or reserved by Perkins; and therefore it is no concern of defendants whether Perkins now or later shall develop the oil and gas which may lie beneath the surface of that half section of ground. Defendants designate their reconveyance of the oil and gas to Perkins as a “lease,” and it is nominally labeled a “lease,” but no relationship of lessor and lessee exists between the Finleys and Perkins. The instrument calls for no payment of rents or royalties to the Finleys. There is an unqualified grant to Perkins of “all the oil and gas in and under” the premises described. There are other details in the instrument touching the respective rights and duties of the parties, but nothing which qualifies the grant.
It is not pretended that the trial court’s findings of fact, upon which its judgment was necessarily founded, lacked support in the evidence. Indeed, there was virtually no other evidence; nor is it pretended in this record that defendants’ deed was based on any other consideration than that outlined in the written' contract of purchase and sale executed by the parties on January 25, 1919. A quibble is raised because that contract was made between Perkins and H. C. Finley while the deed was made to Mrs: Finley. This is a specious discrepancy, indeed, but it suggests nothing of sufiicient gravity to permit a manifestly righteous judgment to be disturbed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment in two lawsuits between husband and wife, one by the wife for a partnership accounting, and the other by the husband for a divorce.
On August 25,1926, the wife, Helen G. Rasmussen, filed an action against her husband, H. P. Rasmussen, alleging that he and she were partners in a business conducted under the name of the Hutchinson Tent and Awning Company, and that defendant had put her out of the business, refusing to let her have anything to do with it. She prayed for an accounting. The husband countered with an action against the wife for a divorce. His petition comprehensively covered the business relationship of the wrangling pair, but scarcely hinted at any of the statutory grounds on which a divorce may be granted. The prayer of his petition was that Mrs. Rasmussen be enjoined from interfering with the tent and awning business or disposing of the business property or incurring obligations in regard thereto, — and for a divorce.
Answers were filed, but the issues were really developed by the divergent claims of the litigants in their respective petitions. The cases were consolidated and tried by the court, and informal findings were made and-incorporated in one judgment. The court found that a partnership of the husband and wife did exist, but that the extent of the wife’s interest therein could not be determined. A divorce was granted to the husband and certain property and money were decreed to the wife as alimony.
The husband appeals, with a formal specification of errors which in his brief are thus summarized:
“Our principal contentions . . . are twofold. The first is, that for some reason the trial court apparently formed an opinion at the outset of the case, surprisingly favorable to the appellee, which made it extremely difficult for us in the presentation of the evidence, . . . and which resulted, as we contend, in a decree dividing this appellant’s property to an entirely unreasonable extent; the second is; that the court erred upon a proposition of law, with the result that the appellant had, by the terms of the judgment or decree, a much larger part of his accumulations taken from him and given to the appellee, than would have been the case, had the court applied what we contend to be the correct legal principles.”
Touching the first of these contentions, the record does not disclose anything which would form a basis for appellate review. (State v. Robinson, 124 Kan. 245, syl. ¶ 9, 259 Pac. 691.)
Concerning the second contention, it is argued that the evidence did not show a partnership relationship between husband and wife. There was testimony to establish that fact — that of the wife, of her father and her brother, all of whom testified concerning express statements and admissions of the-husband to that effect. Doubtless .counsel for appellant gave no credence to that testimony, but the trial court did; and apparently withheld judgment in the woman’s behalf in the partnership accounting case solely because of a lack of evidence touching the extent of that interest. Be that as it may, the finding of a partnership gives appellant no ground of complaint, since the judgment which aggrieves him was not predicated thereon. What really irks him is the alimony allowed in the divorce action; but under hackneyed rules of appellate review it is only where the trial court manifestly abuses its discretion that its award of alimony in divorce proceedings can be disturbed. In Danielsen v. Danielson, 99 Kan. 222, 226, 161 Pac. 623, a divorce case where appellant’s grievance was the division of property, this court said:
“Some of the things to be considered, in addition to those specified in the statute, are the age, health, earning capacity and future prospects of each party. The question here is not simply whether or not the district court was too liberal in its allowance to the defendant, but whether or not the division was so manifestly inequitable and unjust that this court should interfere.”
To the same effe'ct were Miller v. Miller, 97 Kan. 704, 156 Pac. 695 and citations; Corbett v. Corbett, 101 Kan. 1, 4, 165 Pac. 498; Swalp v. Swalp, 104 Kan. 171, 178 Pac. 415; Miller v. Miller, 113 Kan. 22, 213 Pac. 634.
It certainly cannot be declared that abuse of discretion is manifest in‘this ease. During the existence of the marriage relation, when the wife was virtually the manager of the business, it had grown and prospered remarkably, notwithstanding the husband and wife drew from the business something like $3,000 eaich per annum for their respective personal expenses and private concerns. In the division of property this highly lucrative business, worth $20,000 and with no debts to speak of, was set apart to the husband, subject only to a lien for the wife’s allowance of alimony, $5,000. The award of the diamond, the automobile, and some household goods to the wife was the obvious and natural disposition of those chattels under the circumstances. Nothing savoring of unfairness is disclosed in the division of the real estate between the litigants. We note an argument in appellant’s brief which suggests that this court should disregard the judgment of the trial court and try the case anew. He says:
“May we urge this honorable court to take charge of this controversy at this stage, and enter an order which will be a final determination; or if that request does not appear consistent, then to make a rule applicable to this particular case, governing the disposition of same, so as to make the disposition thereof one of mathematical'computation.”
Neither of these suggestions can be adopted. In Upton v. Pendry, 110 Kan. 191, 203 Pac. 300, it was said:
“This court is not trying this lawsuit; its jurisdiction is limited to a review of errors alleged to have been made by the district court which did try this lawsuit.”
In Wespe v. Wespe, 114 Kan. 21, 216 Pac. 814, it was said:
“As this court has said many times, it cannot retry the case on the abstract. It does not possess the trial court’s facilities for reaching a correct conclusion, and must assume that court strained neither the law nor the facts. The same considerations apply to the award of alimony. Besides that, the district court has a broad discretion in allowing alimony, and that manifest injustice which is necessary to constitute abuse of discretion does not appear.” (p. 22.)
Some miscellaneous motions have been filed in this case, but in view of the main conclusions here reached they need not be con • sidered.
The record discloses no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the board of county commissioners of Franklin county to construct a paved highway. Plaintiff moves for judgment on the return to the alternative writ.
In March, 1920, the board adopted the resolution finding the petition for the road to be sufficient, finding the road to be of public utility, and creating the road district. Survey was made, plats, plans and blue prints were prepared, and in July, 1921, resolution for immediate construction of one and two-thirds miles of the road was adopted. Nothing has been done since completion of this section of the road in 1923.
In 1924 the board was here with an excuse that it had dissolved the district on a recall petition. The excuse was held to be insufficient and the court said:
“The conclusion must be that the road district is still in existence and the project which was an entirety must be regarded as still under construction to be completed as soon as practicable.” (State, ex rel., v. Franklin County, 115 Kan. 531, 536, 223 Pac. 261.)
Nothing has been done, and certain of the excuses offered are trifling: that nobody has asked the board to proceed, landowners want work deferred, and the road is of secondary importance. The board has determined the public utility of the road, and it need not wait to be prompted to execute a work of determined public utility, or hold back on account of opposition.
It is said there was an agreement or understanding with the landowners that this was to be a federal-aid road. The record shows what the road was and is to be. There was no difficulty in securing federal aid for the first section, and if the slightest diligence had been exercised perhaps more might have been obtained.
When the alternative writ was issued the board discovered that federal-aid funds appropriated to Kansas had been obligated, and the highway commission could not grant aid for the road at that time. If the board persists in its dilatory tactics, of course federal aid will be absorbed by other boards who desire to build roads.
During the period of the board’s inactivity the federal government has rerouted six miles of the road at its southern end, and that portion cannot receive federal aid. More than a year ago the court held that construction of a road may not be abandoned on that account. (State, ex rel., v. Leavenworth County Comm’rs, 121 Kan. 148, 245 Pac. 1051.)
■The federal government has made some changes in the matter of curves, grades, and avoidance of grade crossings. These are mere matters of construction detail, and not matters subversive of the project.
It is said the original plans have been returned to the board from the office of the state highway commission, marked void, and the board cannot get an approval of the plans by the state highway engineer. The word “void” was doubtless used by the state highway commission as a term of disapproval under present conditions, a matter within the commission’s general supervisory authority. Disapproval and return of the plans was a signal for activity, and not inactivity, on the part of the board. In the case of State, ex rel., v. Linn County Comm’rs, 120 Kan. 356, 243 Pac. 539, decided more than a year ago, the court said:
“It is the duty of the board to act, to submit its action for approval, and in the event of disapproval to act again. The law is a road-building law, not a road-blocking law. It contemplates no deadlocks which will thwart its purpose, but assumes a conception of official duty which will make that purpose prevail.” (p. 359.)
The court is quite familiar with tactics of the kind displayed by the return to the alternative writ. The board is recalcitrant. A peremptory writ of mandamus will issue, commanding the defendants to proceed forthwith and diligently to complete construction of the highway. For the present the peremptory writ will be in the general terms stated. Jurisdiction of the cause is retained for the purpose of making the writ specifically effective should that be necessary. The costs of the action are taxed to the defendants. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant, Florence Boone, appeals from a. judgment convicting her of murder in the first degree. She was charged with the murder of William D. Conley, a police officer.
The evidence tended to show that on the evening of September 11, 1926, the appellant, leal Beasley, Toby Williams and C. F. Van Kirk (sometimes called Mr. Boone by the witnesses) met in the appellant’s apartment in Kansas City, Mo., that Van Kirk and Williams planned to rob the Missouri Pacific depot in Kansas City, Kan., that they procured a brace and two bits, a round bar, a bottle of powder, some fuse, and a hatchet; that all of those instruments were laid on a bed in the appellant’s apartment; that when Van Kirk and Williams entered the room, they were talking about-getting a car in which to ride to the Missouri Pacific depot; that they had no money; that the appellant offered to and did furnish them the money with which to hire an automobile; that an automobile was procured; that the instruments were wrapped in a newspaper and placed in the automobile; that the appellant heard part of the planning of the proposed burglary and robbery and requested that she be permitted to go on the trip; that she saw the instruments that had been laid on a bed; that about 11:30 p. m. the appellant with Beasley, Toby Williams and Van Kirk went in the automobile to a place near the Missouri Pacific depot in Kansas City, Kan.; that the automobile was driven under a viaduct; that the appellant and Beasley remained in the automobile and were instructed by Van Kirk and Williams if anyone came to drive around the block, but to come back to that place with the automobile and not to run off with it; that Van Kirk and Williams left the automobile and were gone twenty-five or thirty minutes when they returned; that just as they returned to the automobile, police officers arrived, among whom was William D. Conley; that a number of shots were exchanged; and that Conley was killed. There was evidence which tended to prove that an effort had been made to break open some of the windows of the Missouri Pacific depot.
. 1. The defendant contends that “the court erred in its instructions to the jury,” and complains of instructions 10 and 11, which were as .follows:
“10. Under the laws of this state any person who counsels, aids or abets in the commission of any criminal offense may be charged, tried and convicted in the same manner as if he were a principal in the commission of such offense. Therefore, if you find from the evidence beyond a reasonable doubt that at the time and place alleged in the information one C. F. Van Kirk was engaged in attempting to commit a robbery or burglary, and while he was so engaged he made an assault with a revolver upon and shot and killed one William D. Conley; and you further find from the evidence beyond a reasonable doubt that before such assault and shooting occurred, the defendant Florence Bpone had knowingly and willfully counseled, aided or abetted said Van Kirk in said attempt to commit such robbery or burglary, then and in that event it will be your duty to find the defendant, Florence Boone, guilty of murder in the first degree, as charged in the information, the same as if she had individually and alone committed the acts constituting such crime. . On the other hand, if you do not find from the evidence beyond a reasonable doubt that before such assault and shooting the defendant had knowingly and willfully counseled, aided or abetted said Van Kirk in such attempt to commit robbery or burglary, or do not find from the evidence beyond a reasonable doubt that said Van Kirk was, at the time of such assault upon and shooting of said William D. Conley, engaged in an attempt to commit a robbery or burglary, then and in that event you will find the defendant not guilty.
“11. Even if you find from the evidence beyond a reasonable doubt that the defendant knowingly and willfully counseled, aided or abetted one Van Kirk and others in an attempt to commit robbery or burglary, yet if you find from the evidence that at the time of the assault upon and shooting of William D. Conley, said Van Kirk and his associates had abandoned such attempt and before such assault and shooting had decided to desist from such attempt, then and in that event your verdict should be for the defendant. However, if you find from the evidence beyond a reasonable doubt that up to the time of the commission of said assault and shooting, said Van Kirk and his companions had not decided to desist from said attempt, but that such assault and shooting were committed in an attempt to escape arrest for the commission of such attempted burglary or robbery, then under the law there was no abandonment of such attempt at the time of such assault and shooting.”
The pertinent statutes are sections 21-401 and 62-1016 of the Revised Statutes. Section 21-401 in part reads:
“Every murder which shall be committed ... in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.”
Section 62-1016 of the Revised Statutes reads:
“Any person who counsels, aids, or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.”
In 29 C. J. 1093 it is said:
“One who in resisting a lawful arrest intentionally lolls a person seeking to arrest him is guilty of murder.”
In State v. Mowry, 37 Kan. 369, 15 Pac. 282, this'court said:
“A private person may, in a temperate manner and without a warrant, arrest one who has just committed a felony; and it is murder for the person so attempted to be arrested to kill one whom he knows is in fresh pursuit and endeavoring to arrest him for such felony.” (Syl. ¶ 3.)
In 29 C. J. 1073 it is said:
“There may be responsibility for a homicide committed in the execution of a common design, although the plan did not involve taking life. All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design. . . . Those who have joined in a common design to commit an unlawful act are not responsible for a homicide committed by one of their associates after the common object has been accomplished, or the enterprise has been abandoned after a failure.”
The appellant contends that she is not liable for the murder of William D. Conley even if she were a party to the attempt at burglary because the murder was not contemplated in the enterprise and because such attempt at burglary, if any there was, had been abandoned when the shooting occurred. The evidence that the companions of the appellant took guns with them tended to prove that they intended to kill if it became necessary in order to accomplish their design or to effect their escape. There was no direct evidence which tended to prove that the attempt at burglary had been abandoned, although there was evidence from which the jury could have so found. The shooting occurred some distance from the Missouri Pacific station after Williams and Van Kirk had made one trip from the automobile and had returned to it. While that fact was consistent with the abandonment of the enterprise, it did not prove such to be the fact; but that evidence was also consistent with the theory that the attempted burglary had not been abandoned, and that the murder was committed in an attempt to avoid arrest and to escape. State v. Roselli, 109 Kan. 33, 198 Pac. 195, and State v. Loar, 116 Kan. 485, 227 Pac. 359, while not directly in point, are somewhat analogous.
There was no error in either of these instructions. They were based on evidence and correctly stated the law to the jury.
' 2: The appellant complains of the refusal of the court to give the following instructions requested by her:
“1. You are instructed in this case that if you find and believe from the evidence that the defendant had nothing to do with the alleged attempted robbery, if you find such robbery was attempted, then she cannot be convicted in this case, and your verdict should be for the defendant.
“2. You are instructed that if you find and believe from the evidence beyond a reasonable doubt, as hereinbefore defined that even though the defendant knew of the attempted robbery of the Missouri Pacific station, if you find and believe there was an attempt made to rob said station by Van Kirk and Williamson, one or both of them, and otherwise aided such attempt, if you find and believe from the evidence she did so aid, that if the attempt, at the time William Conley was killed, was abandoned, then in that event the defendant cannot be convicted, and your verdict should be for the defendant.”
These instructions were fully covered by instructions Nos. 10 and 11 which were given by the court, and there was no error in refusing to give those requested.
3. The appellant also contends that “the court should have given an instruction with reference to circumstantial evidence.” None was requested by the appellant and she cannot now complain that none was given. (State v. Woods, 105 Kan. 554, 185 Pac. 21; State v. Davis, 106 Kan. 527, 531, 188 Pac. 231, and cases there cited.)
4. The appellant contends that there was no evidence to sustain the judgment against her. She argues that there was no evidence to show that she knew of the attempted robbery or that the car was to be used for an unlawful purpose; that there was no evidence to show .that any attempt had been made to commit a burglary on a Missouri Pacific station; and that the evidence showed that the attempt at burglary and robbery had been abandoned when the shooting occurred. The evidence abstracted has been summarized.' The summary of the evidence discloses that this contention of the appellant is without sufficient foundation and cannot be sustained. She knew the purpose of the trip and heard part of the planning for it. She saw the firearms and saw the instruments that were to be used in the burglary, furnished the money to hire the automobile in .which to go to the Missouri Pacific depot, and asked that she be” allowed to accompany the others on the trip. The evidence tended to show that an attempt had been made by someone to forcibly .enter the Missouri Pacific station, and that she with the others went in the automobile to a place near the station and there waited with one of the party while two of them went away for the purpose of performing the burglary and robbery, and' that when they returned the shooting occurred in which William D. Conley was killed. The evidence did not show that at the time the shooting occurred the effort to commit the burglary had been abandoned, although the shooting occurred some little distance away from the station.
5. The appellant says:
“We think the court also erred in admitting the testimony of leal Beasley over the objection of the defendant. All his testimony, including his confessions, were made after the commission of the offense with which the defendant was charged. The defendant objected to his testimony on the ground that he was one of the coconspirators and could not testify against the defendant, and his testimony should not have been received against her.”
The appellant cites State v. Johnson, 40 Kan. 266, 19 Pac. 749; State v. Bogue, 52 Kan. 79, 34 Pac. 410; State v. Rogers, 54 Kan. 683, 39 Pac. 219. None of these cases supports the contention of the appellant. leal Beasley was a competent witness, and his testimony was admissible. (State v. Patterson, 52 Kan. 335, 34 Pac. 784; State v. McDonald, 107 Kan. 568, 570, 193 Pac. 179; State v. Bolton, 111 Kan. 577, 578, 207, Pac. 653.)
6. The appellant says:
“We also objected to the evidence of Beasley as to what occurred between him and Williamson and Van Kirk or Beasley at the barber shop on the way down to the place where Florence Boone resided, all of which conversations, statements and matters introduced in evidence were made and occurred out of the presence and hearing of the defendant, as hearsay and inadmissible for any purpose against Florence Boone.”
This evidence concerned conversations between the associates of the appellant in arranging and planning for the commission of the burglary, to all of which the appellant acceded when, after knowing the purpose of the enterprise, she asked to accompany the expedition. In State v. Adams, 20 Kan. 311, the court said:
“Generally where there is evidence of a conspiracy to commit a crime, and of its subsequent commission, the state may, and in support and corroboration thereof, show any act or conduct of the alleged conspirators intermediate to the conspiracy and the ci'ime, which apparently recognizes the existence of the conspiracy, reasonably indicates preparation to commit the crime, or preserve its fruits.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action under our declaratory judgment statute (G. S. 1949, 60-3127 et seq.) seeking a binding adjudication and consequential relief respecting a contract between the parties. Defendant answered denying the interpretation of the contract alleged by plaintiff and that plaintiff was entitled to the relief sought, and prayed that the action be dismissed. It also filed a cross petition for a money judgment, and issues were joined upon the cross petition. A trial by the court resulted in judgment for plaintiff and defendant has appealed.
Plaintiff, hereinafter referred to as Northern, is a corporation organized under the laws of Delaware and authorized to do business in Kansas. It is a Natural Gas Company, as that term is defined in the Act of Congress called the Natural Gas Act, 15 U. S. C. A. 717. Its business is to purchase or produce natural gas in one or more states and convey the same into other states for distribution and sale to ultimate consumers. Its pipe lines begin in the gas fields of Texas, extend north through the Hugoton gas fields in Kansas, and north into Nebraska and eastward to Omaha and to areas north and east of Omaha.
Defendant, hereinafter called Republic, is a corporation organized under the laws of Delaware and authorized to do business in Kansas and is a gas producing company. The sole business of Republic is to produce gas which it sells to Northern. They commenced business about the same time in 1930, Republic producing gas which it sold and delivered to Northern. In 1930 a contract was entered into between the two companies with those purposes in view. We are not concerned here with that contract. It is mentioned only as a part of the history of the dealings of the parties. It was modified from time to time, and under date of December 21, 1945, the parties executed the contract here involved. From the experiences of the parties this contract was designed to cover everything of importance with respect to their dealings. The part of it which appellant thought this court ought to have before it is set out as Appendix “A” to this opinion.
We are concerned here primarily with the business of the parties through the fiscal year from July 1, 1947, to June 30, 1948. The trial was held before the Hon. H. W. Stubbs, a member of the bar of this court, sitting as judge pro tem, selected because of his extensive practice in the law of oil and gas. The trial was held in June, 1950, when parol testimony and documentary evidence were received in evidence. Counsel requested findings of fact and conclusions of law and desired to present briefs, which they did later. Thereafter the court filed a memorandum opinion together with findings of fact and conclusions of law. These so thoroughly treat every feature of the case that we think it pertinent to copy or summarize them quite fully, as follows:
“Memorandum Opinion
“During the past weeks I have devoted considerable time to a study of the transcript, the exhibits, the briefs of counsel and their requested findings of fact and conclusions of law, and have noted a surprising lack of conflict in the briefs and in the requested findings of fact. This lack of conflict was also very much in evidence at the trial.
“I have again reversed myself on the matter of the duty of Republic to tender gas to Northern. This is peculiarly a contract which requires the greatest co-operation between the buyer and seller, and as is stated in one or more of the findings', Republic’s duty under the contract consists in part of delivering gas to Northern as Northern requires it, and to deliver large volumes of gas during the summer months when Northern’s requirements are comparatively light would, in my opinion, constitute a violation of the spirit of the contract, and if insisted upon by Republic might even constitute a breach thereof; and I have therefore reached the conclusion that it is Northern’s duty to advise Republic of the amounts of gas required from day to day or from month to month, and Republic’s duty to put that amount of gas at the disposal of Northern, and it is primarily Northern’s obligation to see that the aggregate of the takes specified by it during the contract year at least equals the minimum amount of gas which Republic is entitled to furnish during that year.
“In my construction of this contract I have imposed upon Republic the obligation to comply with the spirit of the Basic Order applicable to the Hugo-ton field. In my opinion the production of a well, or series of wells, continuously to a point approximating but barely under three times the current allowable is not sanctioned by this order. The order requires that the wells be produced within the limits of the current allowable but certain violations are permitted by reason of the impossibility of producing the exact amount allowed and by reason of the fluctuations required by s'easonal changes and the limit of such overproduction is specified as being three times the current allowable, at which time the well must be shut in.
“It is further my opinion that Republic’s insistence during the contract year in question, of producing these wells to a point where by the end of that year the group as a whole would barely escape being shut in and early in the next contract year a large number of wells must inevitably have been shut in, was not only in violation of the spirit of this order, but also in violation of that provision of the contract which provides that the wells should be kept in good condition to produce continuously and without interruption the requirements of the buyer. The wisdom of the parties in restricting the production of the wells during the contract year in question has been justified. It is observed from the record that prior to the commencement of the contract year in question there was no friction whatever between representatives of Northern and Republic. Approximately the minimum of 60% of the requirements of Northerns Omaha District was at all times furnished prior to the commencement of the contract year in question; and it is a fair inference, from the record, if it does not so definitely appear, that for the entire period of time subsequent to the end of the contract year in question, approximately the full current allowable of Republic’s wells have been produced and delivered to Northern. Had the billion and a half feet of gas contended for by Republic been produced during the contract year in question the state of confusion existing during that year must necessarily have continued to the present time; and the conclusion is inevitable that the restriction of these wells during that contract year has enabled the parties to carry out the terms of the contract amicably and without confusion and without the necessity of argument as to what the several provisions of the contract really mean.
“As previously stated, the requested findings of fact by the respective parties showed a remarkable lack of conflict. Most of the findings requested by each party could have been allowed by the court, but this would have resulted in duplication and would have prolonged the record unnecessarily. I have therefore allowed some of these findings in part, some of them in their entirety, and have also combined certain findings requested by plaintiff and defendant.
“The requested Findings and Conclusions of Law, including the interpretation of the contract, are hereto attached. . . .
“Findings of Fact
“No. 1. Plaintiff is in the business of transporting natural gas by pipe line for sale to communities in Kansas, Nebraska, Iowa, Minnesota and South Dakota. During the period in controversy it also owned and operated its own gas wells in the Hugoton Gas Field located in the State of Kansas. In addition, it purchased gas from producers, including the defendant.
“Defendant is a producer of natural gas, and during the period in controversy owned and operated 125 to 135 gas wells in Stevens and Morton Counties, Kansas, which counties are located in the Kansas portion of the Hugoton gas field. Defendant’s wells are connected together with a 14-inch loop line which constitutes what is known as its gathering system. Pipe lines comprising such system are in excess of 60 miles in length. The 14-inch loop lines of the defendant connects with plaintiff’s pipe line system in the Northwest Quarter of Section 19, Township 33 South, Range 36 West, Stevens County, Kansas. That location is the point at which the gas of the defendant is delivered to the plaintiff.
“2. That on December 21, 1945, Republic and Northern entered into a Gas Purchase Contract, which for convenience will be hereafter referred to as 'Con tract’; that generally under the terms thereof Republic agreed to develop approximately 75,000 acres of land therein described in Stevens and Morton Counties, Kansas (or substitutions or additions thereto) for the production of gas, to gather such gas through its own gathering system and to deliver the same to Northern at a point in the NWK of Section 19, Township 33 South, Range 36 West of the 6th P. M., in Stevens County, Kansas, where the gathering facilities of Republic interconnect with the pipeline system of Northern, such delivery to be at the highest pressure which could be efficiently maintained by thei natural pressure of gas from the wells connected to Republic’s gathering system. (Art. V, Sections 1 & 3, Contract); that such parties agreed that Republic’s gathering system should be so designed and at all times maintained as to deliver gas to Northern through pipelines of ample size to conform to good practice so that the pressure drops through said lines from Republic’s wells to the point of delivery to Northern should be as small as practicable (Art. V, Sec. 2, Contract); that the quantity of gas which Northern agreed to purchase and receive from Republic and Republic agreed to sell and deliver to Northern by said contract was 60% of the daily requirements of Northern for serving its pipeline, and any extension thereof, for the ‘Omaha District’ as in the contract defined, it being agreed that in any contract year, beginning on July 1st of each year, the aggregate volume of gas to be purchased by Northern and delivered by Republic should not be less than 12,500,000,000 cubic feet nor more than 36,500,000,000 cubic feet, Republic never being obligated to deliver more than 100,000,000 cubic feet of gas during any twenty-four hour period (Art. 1, Secs. 2, 3 & 4, Contract); That Republic in such contract agreed that it would at all times maintain its gas wells in good condition and use its best endeavors to maintain a supply of gas adequate to meet Northern’s aforesaid daily requirements and to deliver, so far as practicable, and without interruption, to Northern, gas in accordance with Northern’s market demands in said ‘Omaha District’ (Art. I, Sec. 4; Art. VIII, Sec. 1, pps. 17-18, Contract).
“During the effective period of the contract all of the gas rights possessed by Republic in the lands described in the contract and the gathering system of Republic were to be exclusively devoted to the fulfillment of the contract. Republic agreed that it would not sell gas produced from any of the specified acreage to any party other than Northern or use its gathering system in connection with the sale and delivery of gas to any party other than Northern. (Ex. 6, pp. 11-16, Art. VI). Northern was granted the option of installing its own meters on the gas wells of- Republic and was granted the right of ingress to and egress from said meters if located on Republic’s property. (Sec. 4, Art. Ill, Ex. 6). The price to be paid for all gas delivered (Art. Ill), its method of measurement (Art. Ill), quality (Art. IV), delivery pressure and point of delivery (Art. V), and a warranty of title by Republic to the gas sold (Art. IX) were also included in the contract. The volume of gas to be purchased and sold was set forth in the contract as follows:
‘The quantity of gas which Northern agrees to purchase and receive from Republic and Republic agrees to sell and deliver to Northern shall be sixty per centum (60%) of all gas which Northern may take or use, or cause to be taken or used, during the term of this contract, for the requirements of Northern for serving from its said pipe line and any extension thereof which Northern may make, all or any portion of that part of the States of Iowa and Nebraska lying north of the 40th parallel of latitude and East of longitude 98 West of Greenwich, (herein referred to as the “Omaha District”) . . .’
(Sec. 2, Art. I)
“It also provided:
If, in any year, ending June 30 during the term of this agreement, Northern shall fail to take the annual volume of gas as provided in this agreement, then within twenty-five (25) days after the end of such year Northern shall pay Republic (at the price in effect hereunder for gas delivered during such year) for the difference between said volume actually taken and the volume of gas which Northern should have taken during said year.’ (See. 5, Art. II).
“3. In addition, the contract further provided:
‘Republic, subject to the foregoing provisions concerning connected open-flow capacity and subject to the conditions hereinafter stated, shall always have the right to supply sixty per centum (60%) of the aforesaid requirements of Northern up to a maximum of thirty-six billion five hundred million (36,500,000,000) cubic feet per year . . .’ (Sec. I, Art. VIII.) (Underscoring supplied.)
‘It is covenanted and agreed that if either party shall fail to perform any of the obligations or observe and faithfully keep any of the covenants imposed upon it under and by virtue of this agreement, then in such event the other party may at its option terminate this agreement by proceeding as follows: . . .’ (Sec. 4, Art. VIII.)
‘This contract is subject to all valid legislation with respect to the subject matter hereof, either state or federal, and to all valid present and future orders, rules and regulations of duly constituted authorities having jurisdiction.’ (Sec. 2, Art. XII.)
“4. The gas rights in gas lands and gas leases by Republic dedicated under said contract are all presently located in the Kansas portion of the Hugoton Gas Field, hereinafter referred to as ‘Hugoton Area’. The production of gas in the ‘Hugoton Area’ covered by said contract is governed by and is subject to all lawful orders, rules and regulations of The State Corporation Commission of the State of Kansas. By virtue of the statutory authority vested in said Commission, said Commission, under date of March 21, 1944, issued its Basic Proration Order No. 44-3-21, entered in its Docket No. C-164, governing the production of natural gas from the Kansas Hugoton Gas Field; pursuant to the authority of said Commission said Basic Proration Order as amended provides:
‘n. That there shall be held two market demand hearings for each year. The first hearing shall cover the period from October 1st to March 31st, both inclusive; and the second shall cover the period from April 1st to September 30th, both inclusive. The allowable period established shall be a calendar month. The Commission shall issue its orders covering each allowable period, and such orders shall be issued on, or near, the first day of the month for which such order is issued.’
“Each month said Commission promulgates and issues its Gas Proration Order and Report for the Kansas Hugoton Gas Field, in which it determines the market demand for natural gas from the Kansas Hugoton Gas Field for each month and allocates among the several developed gas leases and wells in said field the amount of production of natural gas from each of said developed wells and leases, limiting the same during each month to the respective allowable established for said field and for each of the wells therein. Said Basic Proration Order further provides:
‘p. Operators of wells and purchasers, or others taking gas from any well, shall endeavor to limit their takes of gas to the quantities fixed in the schedule as the allowable production for such well, provided, that if, during the period covered by any schedule there should develop a substantial increase in the amount of the market demand for gas from said field, the Director may permit production to be increased ratably from all the wells in the field to meet such emergency increased demand and the facts respecting same shall be reported to the Commission at or before the next periodic market demand hearing for such action thereon as may be proper. If, at the end of any proration period, there is an overage or underage in production for any well during such period, same shall be carried forward as a charge against or credit in favor of such well and subtracted from or added to, as the case may be, the allowable for such well for the next proration period. Any overage in production from any well during any proration period which is not equalized by ratable overages from all other wells in the field or which is not compensated for in the allowables fixed for other wells in the field for the next succeeding proration period or not otherwise made up within one year after the proration period in which it occurred, shall constitute illegal overproduction from such well and such well shall be shut-in until such overage is thereby fully made up. All wells with an overproduction of three times the amount of their current month’s allowable shall be shut in by the operator or producer and not permitted to produce any gas until such overproduction has been fully absorbed by deductions from such overproduction made by current allowables.’
“5. That at all times Republic has been fully informed as to the volume of gas which it should be necessary for it to deliver to Northern and for Northern to receive to satisfy 60% of Northern’s demands in the ‘Omaha District’ as in said Contract defined; that at all times up to and including the contract year ending June 30, 1947, Republic delivered to Northern and Northern received and paid for volumes of gas each contract year equal to or in excess of 60% of Northern’s market demands in the ‘Omaha District’.
“6. In July, 1947, some 63 wells of the defendant had produced gas in excess of the quantities authorized by the basic order for the Hugoton Field and the July, 1947, monthly allocation order of the Commission. Prior to July 1, 1947, the defendant had voluntarily shut in a number of its wells. On July 31, 1947, the Corporation Commission of the State of Kansas, by telegram directed defendant to shut in 63 of its wells for the reason that 62 of such wells had produced gas in excess of three times their current allowable, and one well had overproduced its authorized allowable for a period of one year or more. On the same date the Kansas Commission issued a formal writ ten order confirming its prior telegraphic order. Prior to the issuance of such shut in order, the Corporation Commission of the State of Kansas had can-celled underages which had been previously granted to the defendant’s wells. Defendant had been given reason to believe that such cancelled production would be reinstated.
“On July 1, 1947, Republic had dedicated to the fulfillment of said Contract a total of 125 gas wells. From time to time additional wells have been so dedicated to the fulfillment of said contract. The Gas Proration Order and Report for the Kansas Hugoton Gas Feld issued by the State Corporation Commission of the State of Kansas for the month of August, 1947, ordered 80 wells of Republic dedicated to the fulfillment of said contract to be shut in during said month of August for overproduction as provided in pertinent proration orders in effect. Dining each of the succeeding months for the period from August, 1947, to and including June, 1948, the said Commission issued its Gas Proration Order and Report for the Kansas Hugoton Gas Field, fixing and determining the current monthly allowable production for each well located in said Field, including the gas wells of Republic dedicated to the fulfillment of said Contract, and ordering certain of Republic’s gas wells shut in during each of such months because of such overproduction of gas from such wells in violation of the orders of said Commission. Gas wells which are shut in by order of said Commission may not during the period they are shut in produce any gas whatesoever until the overproduction from said wells has been absorbed by current monthly allowables attributable to such wells'.
“That with respect to the 125 Republic wells dedicated to the performance of the aforementioned contract, from which its gas was to be produced and delivered to Northern in the performance thereof, such wells cumulatively on July 1, 1947 were overproduced 4,249,000 M. C. F. and for the month of July, 1947, had a cumulative current allowable of 1,749,087 M. C. F.; that during said month of July, 1947 Republic continued to produce its said wells at a rate in excess of the current monthly allowables granted to its said wells under the Proration Orders of the State Corporation Commission of the State of Kansas, with the result that on July 31, 1947, said Commission ordered Republic to shut in 80 of'its said wells because they were currently overproduced in excess of three times the amount of their current monthly allowable, as aforestated.
“That by months during the contract year from July 1, 1947 to June 30, 1948, there follows with respect to wells dedicated by Republic to the fulfillment of the terms of said Contract:
(a) the number of wells not shut in and permitted to produce gas;
(b) the current monthly gas allowable granted cumulatively by the State Corporation Commission of the State of Kansas attributable to Republic’s wells not shut in;
(c) The positive net gas allowables for Republic’s wells not shut in and permitted to produce;
(d) the number of wells so dedicated shut in by the State Corporation Commission of the State of Kansas' because of Republic’s excessive overproduction of gas therefrom;
(e) the cumulative current monthly gas allowable attributed to shut in wells which allowable was not permitted under the Basic Proration Order
of the State Corporation Commission of the State of Kansas to be produced until an accumulation thereof equaled the amount of the prior overproduction from such wells;
(f) the positive net gas allowables attributable cumulatively to Republic’s shut in wells;
(g) the total volume of gas delivered by month to Northern by Republic and paid for by Northern;
(h) 60% of Northern’s market requirements by month with respect to the ‘Omaha District’ demands (set forth in plaintiff’s Exhibit 15).
“7. On October 25, 1948, defendant notified plaintiff by letter that it had failed to fulfill its contractual obligations by not taking and paying for 1,508,-825,000 cubic feet of gas in the period July 1, 1947 to June 30, 1948. This communication was preceded by a letter dated June 12, 1948, in which the president of defendant stated that the volume of gas which plaintiff should take during the period ending June 30, 1948, could not be accurately determined but that the total available to plaintiff is substantially below the 60% requirement of the contract. He requested a report of the total amount of gas purchased by plaintiff for the period ending June 30, 1948, as soon as possible after that date. Defendant in its letter of October 25, 1948, did not insist that plaintiff should have purchased a volume equaling 60% of the Omaha District requirements but chose to accept the volume of 22,672,013,000 cubic feet as satisfying the contractual obligation of plaintiff.
“22,672,013,000 cubic feet of gas is the sum of the total monthly allowable assigned to the wells of Republic dedicated to this contract before being diminished by the overproduction which was the basis of the shut-in order.
“Thereafter, and on July 12, 1948, Republic billed Northern for $90,529.50 for 1,508,825,000 cubic feet of gas for the contract year ending June 30, 1948, over and above the volume of gas actually delivered by Republic and received and paid for by Northern during such contract year.
“9. Under date of October 28, 1949, Republic wrote Northern a letter informing Northern that Republic exercised its alleged optional right to terminate said Contract because of Northern’s alleged failure to take or pay for 1,508,825,000 cubic feet of gas in the contract year ending June 30, 1948, in addition to that which was delivered by Republic in such contract year and paid for within twenty-five days following June 30, 1948; that on the 21st day of November, 1949, and within thirty days of Northern’s receipt of Republic’s purported notice of the cancellation of the contract, Northern filed this action in this Court denying any liability to Republic for the 1,508,825,000 cubic feet of gas which was not delivered by Republic, but as evidence of its good faith and in compliance with the terms of such Contract, Northern concurrently with the filing of said petition deposited with the Clerk of this Court the sum of $90,529.50 to be paid to Republic in the event it should finally be adjudged in this action that said sum of money was owing to Republic by Northern, otherwise such money to be returned to Northern; that in this action and in Northern’s petition filed herein and its evidence in support thereof, it is found that Northern is now and at all times has been ready, willing and able to perform its obligations under said Contract in full and to pay the $90,529.50, or any other sum to Republic, in event it is finally adjudged in this action that such monies are due Republic from Northern; that Northern in compliance with the provisions of the Contract has indemnified Republic for any and all consequences of the alleged breach on the part of Northern which Republic contends exists, if in fact it be finally adjudged in this action that Northern has breached any of its obligations under said Contract.
“10. That during the contract period, July 1, 1947 to June 30, 1948, representatives of plaintiff and defendant discussed the effect of the said shut-in order in connection with gas which would be produced during the period in controversy. Estimátes were made as to the volume of gas which could be produced from defendant’s wells and not be in violation of the monthly allowable allocation of the Kansas Corporation Commission. In nearly all of such discussions defendant’s representative suggested delivery of more gas. On March 12, 1948, defendant’s representatives in a letter addressed to Plaintiff’s representatives, requested that defendant accept delivery of the current monthly allowable from the wells covered and included in the contract in controversy. Subsequent to such date, the plaintiff did not take the current monthly allowable as shown by the monthly schedules of the Kansas State Corporation Commission.
“In the conversations above referred to the representatives of plaintiff and defendant did, in fact, agree as to the amount of gas to be produced by Republic and received by Northern during the particular months which were the subject of the conversations, although in most instances Republic’s acquiescence was reluctant, and Republic did not intend by such acquiescence to modify the terms of the contract. That ordinarily Republic’s deliveries closely approximated the amounts so agreed upon, but that in some instances they fell below the agreed or suggested amounts.
“11. On June 12, 1948, the President of the defendant corporation advised plaintiff that, according to defendant’s estimates, plaintiff had failed to take the current allowable of Republic for the period of July 1, 1947 to July 1, 1948, in an amount of approximately 1,220,000,000 cubic feet. He also called the attention of the plaintiff to Section 5, Article II of the contract of December 31, 1945, and requested that plaintiff supply defendant with information concerning its purchases as soon as possible after June 30, 1948, so that the amount of money due the defendant could be determined. At no time prior to the filing of the within action did plaintiff refuse to pay defendant the amount of money'which is in controversy in this action.
“12. In July, 1947, defendant’s wells had a deliverability, and were capable of producing into its lines two hundred and sixty-one million cubic feet daily, and in July, 1948, a deliverability of two hundred ninety million cubic feet daily. During the period in controversy, the average monthly pressure maintained by defendant at its delivery point ranged from two hundred sixty-four pounds (264) to two hundred ninety-eight (298) pounds. Plaintiff held the pressure at its receiving point close to two hundred ninety (290) pounds, but always less than the pressure maintained by defendant. The 135 gas wells of the defendant are not all of the same size. There is a variance of over one hundred per cent (100%) in the open flows of the wells. The open-flow of defendant’s individual wells is as high as 35 and on an average are from 15 to 16 million cubic feet a day. Defendant had on hand and available for delivery a sufficient volume of gas to enable it to deliver to plaintiff the 1,508,-825,000 cubic feet of gas during the period in controversy, and was ready, able and willing so to do, without regard to the effect such production might have upon the standing of Republic’s wells under the basic order of the State Corporation Commission. Northern was at all times ready, able and willing to receive, purchase and pay for said 1,508,825,000 cubic feet of gas during the period in controversy if the same could have been produced by Republic without jeopardizing its ability to produce and deliver gas continuously and without interruption as specified in the contract.
“13. The contract of December 21, 1945, committed defendant to sell the gas produced from the wells dedicated thereunder exclusively and only to the plaintiff for its term. In addition the pipe lines constituting the gathering system of the defendant were committed to the exclusive delivery of gas to the plaintiff. Defendant was forbidden by the terms of its contract to sell gas produced from its wells to others than the plaintiff.
“14. Subsequent to June 30, 1948, defendant had delivered to plaintiff substantial quantities of gas from the wells which were covered by the contract of December 21, 1945. During such period of time plaintiff never refused to pay defendant the amount in controversy. On December 1, 1949, defendant notified plaintiff by telegram, that the price of all gas supplied to plaintiff would be twelve (12) cents per thousand cubic feet under conditions set forth in the communication. Plaintiff declined to acquiesce in increasing the price to twelve cents and so notified defendant by letter on December 1, 1949. From June 30, 1948, the plaintiff conducted its business in the usual and ordinary way, made contracts for increased demand with its customers and included the estimates of reserves of defendant in hearings before the Federal Power Commission, in connection with its financing.
“15. That in the performance of the Contract Republic has at all times had the complete and exclusive control over the operation of its gas wells dedicated to the fulfillment of such contract, its gathering system, its measuring' station through which such gas is measured and its facilities leading from such measuring station to Northern’s pipe line; that at no time since the execution of the Contract have any valves in Northern’s intake pipelines been closed, except for occasional temporary shut downs of not to exceed eight hours in length for the purpose of making repairs; that no representative of Republic ever complained that the pressures maintained by Northern in its pipelines prevented or would prevent Republic from delivering gas to Northern, and Republic does not contend that the pressures maintained by Northern in its pipelines prevented Republic from delivering gas to Northern; that the volume of gas delivered by Republic and taken or received by Northern has at all times depended upon the number of wells of Republic which it has opened up and permitted to produce; that during the contract year ending June 30, 1948, 9 wells in addition to those in existence on July 1, 1947 were connected by Republic and dedicated to the performance of said contract; that there follows a tabulation of (a) the number of Republic wells dedicated under Contract by month which because of not being shut in due to excessive overproduction were permitted to produce, and (b) the average number of such Republic wells by month in production in the contract year ending June 30, 1948:
that the pressures maintained in Northern’s pipelines were at all times such that if Republic had produced the quantity of gas which Republic contends Northern should have taken, to-wit: 1,508,825,000 cubic feet, such volume of gas would have been delivered into Northern’s pipelines and by it received.
“16. That in order that a natural gas pipeline company may function adequately and satisfactorily serve the public who are dependent upon it, the volume of gas received by such company and thus available to satisfy its market demands must be continuous and constant in amounts from day to day; that in the performance of its obligations in supplying its customer requirements and in making new commitments for gas Northern has at all times relied upon the continuation of its purchases of gas from Republic under the Contract; that in the contract year ending June 30, 1947, the deliveries of gas from Republic to Northern were under this Contract approximately 30% of Northern’s entire requirements, and in the contract years subsequent thereto Republic’s deliveries of gas under the Contract have been approximately 18% of Northern’s entire requirements; that the termination of the Contract cutting off the supply of gas from Republic to Northern would be a very serious matter to Northern in the performance of its obligations to its customers. That during the contract year, July 1, 1947 to June 30, 1948, because of the overproduction of gas by Republic, Republic was in a perilous position with respect to the production of gas from its wells dedicated to the fulfillment of the Contract, and during said year Republic produced and delivered to Northern and Northern received and paid for all of the gas which Republic thought it could produce and still not have additional wells shut in because of overproduction.
“17. As of July 1, 1947, Republic’s wells dedicated to the performance of the Contract were overproduced 4,249,000 M. C. F. of gas. If the 1,508,-825,000 cubic feet of gas for which Republic seeks payment, but which was not delivered by Republic or received by Northern, had been produced by Republic in the contract year ending June 30, 1948, Republic’s said wells as a group would have been overproduced 4,249,000 M. C. F., such overproduction being exactly in the same volume as existed on July 1, 1947, and consider ing the monthly allowable granted such Republic wells by the State Corporation Commission of the State of Kansas for the month of July 1, 1948, Republic’s wells as a group would have been overproduced 2.6 times the total month’s current allowable granted thereto; assuming Republic had produced the volume of gas which it did produce from its wells dedicated to the performance of this contract in the contract year ending June 30, 1948, and again in the contract year ending June 30, 1949, and in addition thereto had produced the 1,508,-825,000 cubic feet of gas for which it contends Northern is obligated to pay, Republic’s such dedicated wells as a group would have been on June 30, 1949 overproduced approximately 3 times their current monthly allowable for the month of July, 1949; assuming Republic’s wells dedicated to the performance of this Contract had produced the volume of gas which was actually produced in the contract year ending June 30, 1948, and in addition thereto had produced the 1,508,825 cubic feet of gas for which Republic contends Northern should pay, and further assuming that Republic had produced the volume of gas from its said wells which was actually produced thereafter and up to August 1, 1949, Republic’s wells would have on August 1, 1949, as a group have been overproduced approximately 3 times their then current monthly allowable, subjecting those of said wells which were produced in excess of 3 times their then current monthly allowable to being shut in for approximately three months or until such overage in production was equaled by subsequent monthly allowed production to such wells; that during any such shut in period Republic would not have been able to have delivered gas to Northern without interruption in the satisfaction of Northern’s market demands in the ‘Omaha District’.
“18. That notwithstanding Republic’s contention that Northern had breached the contract by failing to pay $90,529.50 for said 1,508,825,000 cubic feet of gas in addition to the gas which was actually delivered by Republic and received and paid for by Northern in the contract year ending June 30, 1948, Republic elected to continue the contract in existence and to operate thereunder for seventeen months and until December 1, 1949; that Republic from month to month delivered gas to Northern in volumes approximating the monthly current allowables granted by the State Corporation Commission of the State of Kansas to Republic’s wells and Northern received such volumes of gas and paid Republic therefor; that at no time since the end of the contract year June 30, 1948, have Republic’s deliveries of gas been substantially equal to 60% of Northern’s market demands in the ‘Omaha District’, but in each contract year have exceeded 12,500,000,000 cubic feet of gas.
“19. That on or about December 1, 1949, Republic wired Northern demanding that Northern pay Republic at the rate of 12% per M. C. F. for all gas by Republic thereafter delivered to Northern under the facilities theretofore in use under Contract; that Northern immediately responded by wire to Republic that such Contract was still in force and effect and that the price paid for such gas was controlled by such Contract; that thereafter in January, 1950, Northern paid to Republic at 6% per M. C. F. the purchase price of the gas delivered by Republic and received by Northern in the month of December, 1949; that while such payment was retained by Republic, it immediately notified Northern that it contended twice such amount of payment should have been made and made demand for such difference in payment; that Northern immediately responded to Republic that such payment as made by Northern to Republic was correct and in accordance with the terms of such Contract; that payments on the same basis, followed by similar exchanges of correspondence or wires between the parties, have been made each month subsequent to January, 1950.
“20. That during the months of December, 1949 and all months subsequent thereto Republic has continued to deliver gas to Northern from Republic’s wells theretofore dedicated to the performance of Contract through Republic’s gathering system at the delivery point designated in such contract substantially in accordance with the current monthly allowables granted Republic’s wells by the State Corporation Commission of the State of Kansas; that since December 1, 1949, Republic has dedicated newly completed wells under said Contract and has, as one of the steps in securing approval of the acreage allocation to such wells and the granting of monthly állowables thereto by the State Corporation Commission of tire State of Kansas, represented to such Commission that the gas which may be produced therefrom will be by Republic sold to Northern under Contract; that negotiations as contemplated by such Contract have been instituted and are being conducted by both Northern and Republic for the determination of the price to be paid Republic by Northern for gas which may be delivered under said contract subsequent to July 1, 1951. Republic’s witness before the State Corporation Commission at the hearing in question also advised the Commission that the contract was at the time in litigation.
“21. That an actual controversy exists between Northern and Republic as to the correct interpretation of the contract and the rights and obligations of the parties thereunder.
“CONSTRUCTION OF CONTRACT
“The Court construes pertinent provisions of the contract between Northern and Republic, dated December 21, 1945, as follows:
No. 1: Annual Minimum and Maximum Volumes.
“The pertinent provisions dealing with this subject may be briefly summarized as follows:
“Article I, Northern agrees to purchase and receive and Republic agrees to Section 2. sell and deliver, sixty (60) per cent of Northern’s market requirements in the Omaha District.
Article I, The overall minimum is fixed at 12,500,000,000 cubic feet and Section 3. the overall maximum is fixed at 36,500,000,000 cubic feet. Article I, The rate of delivery required shall never exceed , 100,000,000 Section 4. cubic feet in any 24 hour period.
“Article VIII, Again refers to a minimum of 12,500,000,000 cubic feet and Section 1, provides that the right to supply such minimum shall deParagraph 1. pend upon Republic’s wells having an open flow at all times during the contract period of at least 342,465,750 cubic feet of gas per day.
Paragraph 2. Again affirms the right of Republic to supply at least 60% . of Northern’s requirements in its Omaha District, but provides that in order to enjoy such privilege the open flow of Republic’s wells shall maintain a specified level.
Provides for modification of the foregoing provisions and volumes in the event Republic’s wells become so depleted as to be unable to furnish the specified volumes of gas. Paragraph 3.
Provides that the contract shall be subject to all valid legislation, and to all valid orders, rules and regulations of duly constituted authorities having jurisdiction. Article XII, Section 2.
“Based upon the foregoing provisions of the contract, it seems clear, and the court so holds, that Republic has the right to sell and deliver and Northern has the obligation to receive and pay for natural gas in an amount equal to the-greater of 12,500,000,000 cubic feet annually or 60% of Northern’s Omaha District annual requirements, not in excess of 36,500,000,000 cubic feet annually, and at a rate not exceeding 100,000,000 cubic feet in any 24 hour period, provided:
“(a) the open flow and other physical attributes of Republic’s wells conform to the specifications contained in the contract, and
“(b) Republic may lawfully produce such gas under pertinent valid rules and regulations of any duly constituted authority, which authority presently is, and during the period in controversy was, the Kansas State Corporation Commission;
“(c) By lawful production is meant production in conformity with the spirit and intent of the basic order in the Hugoton field designated as Order No. 44-3-21, Paragraph “P”, which is quoted in part in finding of fact No. 4 herein, the opening sentence of which reads in part as follows: ‘Operators of wells and purchasers or others taking gas from any well shall endeavor to limit their takes of gas to the quantities fixed in the schedule as the allowable production for such well. . . .’
“The Court holds that it is the duty of both the producer and the purchaser to endeavor to limit their takes for any given period to the amount of the net allowable shown on the proration schedule for such period; the net allowable being the current allowable as the same may be enlarged by existing underages or diminished by existing overages.
“The right of Republic to sell and deliver this volume of gas is not, however, optional with Republic. Northern has an equally valid and enforceable right to demand and receive the same volume of gas, subject to the same conditions.
“No. 2. Tender and Delivery of Gas.
“(a) Article I, Section 4 of the Contract provides substantially as follows:
“Article I, Provides that so far as practicable, and without interruption, Section 4. Republic shall deliver and Northern shall take gas in accordance with Northern’s market demands in the Omaha District, and that Northern shall from time to time notify Republic of any anticipated increase in such daily requirements, etc.
“The foregoing casts upon Northern the'duty to determine and to notify Republic of its daily requirements, or other periodic requirements, within the limits specified in the contract; and, having been so notified it is Republic’s duty to supply such volumes of gas.
“Republic has no way of ascertaining what Northern’s Omaha District demands are or will be from time to time, except as it is advised by Northern; and to hold that Republic has the right to deliver and enforce the acceptance of volumes of gas not exceeding 100,000,000 cubic feet daily, without regard to market requirements of Northern’s Omaha District, would violate this specific section, as well as the spirit of the entire contract.
“It therefore follows that Republic, in the fulfillment of its contract obligation, is not required to tender to Northern, or to attempt forcibly to deliver into Northern’s lines, more gas than Northern has indicated it will take; and it is Northern’s duty to so regulate its takes from day to day or from month to month that at the end of any given contract year it will have received the volume of gas which Republic is entitled to produce and deliver to Northern for that particular year.
“(b) The Court construes Section 1 of Article V of the Contract to require that deliveries of the required volumes of gas by Republic to Northern and production thereof by Republic shall be from a sufficient number of Republic’s wells to effect such deliveries at the point of delivery into Northern’s pipe line at the highest pressure which can be efficiently maintained by the natural pressure of gas from wells connected to Republic’s gathering system and to so operate its said wells and gathering system that delivery of the required volumes of gas may be made by Republic; provided further, however, that so long as the weighted average field pressure of the wells from which gas is at the time being delivered hereunder shall exceed one hundred fifty (150) pounds, the delivery pressure shall not be less than one hundred (100) pounds to the square inch. In the event that the weighted average field pressure of the wells from which gas is at the time being delivered hereunder shall fall to one hundred fifty (150) pounds (or less) said required delivery pressure may be reduced to not less than fifty (50) pounds per square inch.
“No. 3. Maintenance of Wells.
“Article VIII, Section 1, commencing with the last paragraph on page 17 of the contract contains the following provisions:
‘Republic covenants and agrees that it will at all times maintain its gas wells in good condition and to use its best endeavors at all times to maintain a supply of gas adequate to meet Northern’s aforesaid requirements under all conditions of this contract’.
“The Court construes this provision to mean not only that Republic will maintain its gas wells in good physical condition, but also that it will maintain their status under the Rasic Order of the Corporation Commission in such condition that they will be permitted to produce in conformity with the spirit and intent of this Order and are not in imminent danger of being shut in for overproduction.
“No. 4. Failure of Northern to Take.
“(a) The Court construes Section V of Article II of said contract to mean that if in any year ending June 30 during the term of the contract Northern shall fail to take the minimum volume of gas which Republic is entitled to produce and deliver for that year, under the construction placed upon said contract in Paragraph No. 1 hereof entitled ‘Annual Minimum and Maximum Volume’, then within twenty-five (25) days after the end of such year Northern shall pay Republic ‘at the price in effect under said contract for gas delivered during such year’ for the difference between the volume of gas actually taken and the volume of gas which Northern should have taken during such year, provided Republic shall, during such year, have been at all times ready, able and willing to deliver such minimum volume of gas continuously and without interruption in daily or other periodical amounts approximating the amounts designated by Northern for such respective periods.
“(b) Section 5 of Article II makes no mention of payment of interest upon sums owing from Northern to Republic under the circumstances described therein. Rut the Statute, G. S. ’35, Sec. 41-101, reads in part as follows: ‘Creditors shall be allowed to receive interest at the rate of 6% per annum when no other rate of interest is agreed upon, for any money after it becomes due.
“The Court holds that the quoted section of the statute applies to any obligation for which Northern may become liable under this section of the contract.
“(c) It has been argued that the take or pay provision in Section 5 of Article II is unenforcible as constituting a penalty not providing for the proper measure of damages, and as being against public policy, and numerous cases have been cited in support of counsel’s position. In the usual case of a contract providing for the purchase and sale of merchandise, where an open market exists and the buyer refuses or fails to accept delivery of the merchandise which by the contract he is required to accept, the weight of authority, including the decisions of the Kansas Supreme Court, probably supports the rule that the full contract price may not be collected as damages, and that the seller is obligated to endeavor to minimize his damages by disposing of the property upon the open market or through other channels. However, in the instant case the court takes judicial notice of the fact that the merchandise which is the subject of this contract is of a migratory nature, and that it may flow from under the acreage dedicated to the contract to other acreage; that if the wells on the dedicated acreage are restricted in their production far below the production authorized by the State Corporation Commission and the wells on adjoining acreage are produced to approximately the amount of such allowable, the gas under the dedicated acreage will migrate to the adjoining acreage and may be forever lost to the seller.
“In addition to this, under the terms of the dedication of this acreage, and of the gathering system and other facilities necessary to produce the gas and deliver into the system of Northern, Republic is prohibited from tendering or selling any portion of such gas to any other person, and is prohibited from using the gathering facilities owned by it and used in connection with the production of gas for the transportation and delivery of any such gas to any other purchaser. (Art. VII, Secs. 1, 4 and 6.)
“Thus, the reason for the general rule fails in the instant case, and to enforce this rule would work an unreasonable hardship on Republic since Republic has no way of protecting itself or minimizing its damage by disposing of the gas in other channels in the event of the refusal of Northern to accept delivery.
“The Court therefore construes this section of the contract in this respect as being reasonable, just and enforcible.
“No. 5. Default, Right of Cancellation.
“Article VIII, Section 4, grants the right to either party to cancel the contract in case of default of the other, and provides procedure to be followed.
“Sections 5 and 6 of Article II fix the liability of Northern for payment of any gas which is received under the contract or which should have been received but which Northern refuses to accept, and under the construction of said contract as hereinbefore contained it is held that Republic is entitled to collect interest upon any such items as may be in default, from the date of default until payment thereof; interest on the amounts accruing under Section 6 of Article II being subject to the limitation in said Article contained.
“In the opinion of the Court Republic is amply protected in case of default in payment of accounts due from Northern under this contract by said Sections 5 and 6 of Article II, and the privilege of cancellation of the contract for simple default in payment of such account does constitute a penalty which is unfair and unreasonable, and which should not be permitted.
“This section, therefore, is construed by the Court not to authorize the right of cancellation for simple default or delay in payment of accounts accruing under the contract.
“Conclusions of Law
I.
“That both Northern and Republic have at all times fulfilled their obligations under the contract dated December 21, 1945, between Republic and Northern, and that Republic’s notice to Northern of Northern’s alleged breach of said contract, dated October 28, 1949, is without legal effect.
II..
“The delivery by Republic and receipt and payment therefor by Northern of the total volume of gas delivered by Republic to Northern under said contract during the contract year ending June 30, 1948, was, under the facts and circumstances existing during said contract year as disclosed by the evidence in this case, in complete satisfaction of the obligations of the parties thereto with respect to the total volume of gas to be delivered by Republic and to be received and paid for by Northern under said contract for that contract year.
III.
“That in the year or years immediately preceding the contract year ending June 30, 1948, both Northern and Republic knew, or in the exercise of diligence should have known, the amount of the allowables granted to Republic’s wells dedicated to the contract, and both parties acquiesced in the overproduction of Republic’s wells to the extent that many of them were shut in by order of the State Corporation Commission soon after the commencement of the contract year ending June 30, 1948, and neither party should be permitted to take advantage of the action of the other in either overproducing said wells or in acquiescing to such overproduction.
IV.
“That the failure of the Republic to produce and Northern to receive and pay for the volume of gas in question, to-wit, 1,508,825,000 cubic feet was due to the fact that this volume of gas had been produced by Republic, delivered to Northern and paid for by Northern in the year or years immediately preceding the contract year'ending June 30, 1948.
“That for the period commencing with the date of the execution of said contract and ending June 30, 1948, Republic had produced and delivered to Northern, and Northern had received and paid Republic for approximately the amount of the total current allowable granted by the State Corporation Commission during that period to the wells of Republic dedicated to this contract.
V.
“That the production by Republic of the 1,508,825,000 cubic feet of gas in question during the contract year ending June 30, 1948, would have jeopardized the position of Republic’s wells and would have made it impossible for Republic to have thereafter performed its obligation to deliver gas continuously and without interruption as required by Northern as specified in the contract.
VI.
“That neither party has breached the contract; that Northern is not liable to Republic in the sum of $90,529.50, or any other sum by reason of the failure of Republic to produce and deliver or of Northern to receive and pay for the volume of gas in question, and that the certified check deposited by Northern with the Clerk of this court at the commencement of this action should be by the Clerk returned to Northern.
VII.
“That the costs of this proceeding should be borne equally by the parties hereto.
“Dated this 5 day of January, 1951.”
In due time Northern moved for the modification of the wording of two of the findings of fact. This was sustained. Republic moved to modify the findings of fact, the construction of the contract and the conclusions of law in many particulars. This was allowed in a few minor particulars and overruled as to most of them. Republic also moved for a new trial, which was overruled. Judgment was rendered for plaintiff in harmony with the court’s modified findings of fact, construction of the contract and conclusions of law. Republic in due time filed a notice of appeal from all adverse rulings and listed numerous specifications of error. In this court Republic presents the questions involved for our determination as follows:
“1. May refusal to perform a definite contractual obligation to purchase a specified amount of natural gas from designated producing wells be excused on the ground that the gas not taken, although available, could not have been produced lawfully when:
“(a) admittedly the required quantity of gas could have been produced and delivered without exceeding three times the current allowable for the wells in question, and
“(b) the Commission’s own order unequivocably provides that overproduction is not unlawful unless and until it exceeds three times a well’s current allowable, and
“(c) the Commission and the litigants have all given an operative construction to the applicable order as rendering production ‘unlawful’ only when it exceeds three times the current allowable of a producing well, and
“(d) the refusal to perform the contract was not based upon the ground that the rejected gas could not have been lawfully produced.
“2. Is a provision in a gas purchase contract which provides that either party thereto shall have the right to terminate the same upon the default of the other party, unenforceable by the seller when the buyer defaults in its contractual obligation to take or pay for a specified quantity of gas.”
The gist of this lawsuit is embodied in the first question with its subdivisions, stated by Republic to be involved here. The question is founded upon the contention that Republic may lawfully produce and sell all the gas it can produce from its wells so long as it does not produce from any one of the wells, or all of them, more than three times the amount allotted to each well, or all of them, by the state corporation commission. This contention is erroneous. It is predicated solely upon the latter portion of paragraph “p” of the Commission s basic order of March 21,1944, quoted in the trial court’s findings. . It ignores the first part of the same paragraph, which as applied to Republic, reads:
“Operators of wells . . . shall endeavor to limit their takes of gas to the quantities fixed in the schedule as the allowable production for such well,
This is the basic rule which governs Republic’s operation of its wells. This is followed by a proviso:
“. . . that if, during the period covered by any schedule there should develop a substantial increase in the amount of the market demand for gas from said field, the Director may permit production to be increased ratably from all the wells in the field' to meet such emergency increased demand
and report that fact to the Commission. There is no contention in this case that any increased production was allowed by the director by virtue of this proviso. It is true that the latter part of the paragraph provides in substance that a well which prodúces more than three times the amount of gas allowable to it shall be shut in. Perhaps these provisions were inserted because of the difficulties operators would encounter in attempting to hold pro duction of their wells to the specific allowables named by the Commission and to afford a workable leeway. Certainly they were not designed to nullify the provisions in the earlier part of the paragraph. Apparently it is the contention of Republic that the only penalty it may sustain for overproduction from its wells is to have them shut in. That view, however, is inaccurate. There may be penalties (G. S. 1949, 55-708) or injunctions (G. S. 1949, 55-709). And, aside from those provisions, clearly such conduct is not in harmony either with the statute (G. S. 1949, 55-703) or with the rules of the Commission which it is authorized to make under the section last cited and G. S. 1949, 55-704.
While but two paragraphs, “n” and “p” of the Commission s order of March 21, 1944, were copied in the trial court’s findings, the entire order was in evidence. We need not quote from it at length since the parties are familiar with it and it is available to anyone interested. It describes the Hugoton gas field much as was done in Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 724, 222 P. 2d 704; 170 Kan. 341, 225 P. 2d 1054, to which reference is made ánd in which case Northern was a party. It is a large field, a common source of supply,'and many producing wells have been drilled into it by various gas operators. Acting under the state’s police power our legislature in 1935 (Chap. 213, Laws 1935) enacted a statute applicable to the Hugoton gas field (now as amended, Chap. 55, Art. 7, G. S. 1949) relating to the production and conservation of natural gas. Its principal purpose is to prevent waste, which it undertook to prohibit. The state corporation commission was vested with jurisdiction over the subject matter of the act. One of the problems to be regulated was orderly production as between operators so as to enable each operator to produce his fair share of the gas from the common pool. To accomplish this the commission, after extended study and repeated hearings, made its basic order of March 21, 1944, which has been amended in a few details not here important. Under this the commission from time to time fixes allowables for the production of gas from each well, and group of wells, in the Kansas portion of the Hugoton gas field. It is essential that operators in that field “limit their takes of gas to the quantities fixed in the schedule as the allowable production” for each well or group of wells, as nearly as that can reasonably be done, as provided in paragraph “p” of the basic order; otherwise, equitable production cannot be maintained.
Able and industrious counsel for Republic have argued the first of the questions they state as being involved in this appeal under several subheads, each of which is predicated upon the theory that the latter portion of paragraph “p” of the basic order allows Republic to produce gas from each of its wells to the amount just under three times the allowable for such well. The theory is wrong. The allowable for each well is the amount stated by the commission as allowed to it, — not 2.99 times such amount. We have given careful study to the arguments of counsel on this question and to the authorities cited by them, but see no necessity for an extended review thereof. We are satisfied with and adopt the findings of fact, construction of the contract and conclusions of law relating thereto made by the trial court.
In view of what we have said upon the question which is the gist of this lawsuit the second question stated by Republic as being involved for our determination becomes an academic one. Counsel for appellant in their brief are frank enough to say:
“In the first instance defendant concedes that plaintiff removed the default which it committed during the year ending June 30, 1948, from the scope of said provision (Art. VIII, Sec. 4, Contract), by the depositing of the sum of $90,529.50 with the Clerk of the District Court of Stevens *County, Kansas. Therefore, we do not have present in this appeal the question whether the contract should be terminated by reason of such default.”
In this situation we find no necessity of passing upon that portion of the trial court’s ruling which pertains to that matter. When a situation arises which the parties think calls for the construction of this provision of the contract it may be done upon the facts, pertaining thereto.
The judgment of the trial court is affirmed.
APPENDIX “A.”
“(Immaterial parts omitted.) Gas Purchase Contract.
“This Contract, made and entered into this 21st day of December, 1945, by and between Republic Natural Gas Company, a Delaware corporation, as party of the first part, hereinafter referred to as ‘Republic’ and Northern Natural Gas Company, a Delaware corporation, as party of the second part, hereinafter referred to as ‘Northern’;
“Witnesseth: That in consideration of the covenants and agreements hereinafter set forth to be kept and performed by the parties, it is hereby agreed as follows:
“ARTICLE I. Gas to Be Purchased and Sold. Section 1. Sale and Purchase Commitments. Subject to the terms and conditions and within the limitations hereinafter set forth, Republic agrees to sell and deliver to Northern and Northern agrees to receive, purchase and pay for natural gas in its natural state produced or purchased by Republic in the ‘Hugoton Area’ which, for the purposes of this contract, is defined to mean lands located in Stevens, Morton and Grant Counties, Kansas, and Texas County, Oklahoma, and Counties in Kansas and Oklahoma immediately adjoining said Stevens, Morton or Grant Counties, Kansas, or Texas County, Oklahoma.
“Section 2. Volume to be Purchased and Sold. The quantity of gas which Northern agrees to purchase and receive from Republic and Republic agrees to sell and deliver to Northern shall be sixty per centum (60%) of all gas which Northern may take or use, or cause to be taken or used, during the term of this contract, for the requirements of Northern for serving from its said pipe line and any extension thereof which Northern may make, all or any portion of that part of the States of Iowa and Nebraska lying North of the 40th parallel of latitude and East of longitude 98 West of Greenwich (herein referred to as the ‘Omaha District’), which is hereby agreed to mean the total of: (a) Sixty per centum (60%) of all gas sold by Northern in the Omaha District after adjusting sales pressure basis of measurement to the purchase basis of measurement, viz.: 16.4 pounds per square inch absolute pressure. Subsections (5), (c) and (d) omitted.
■ “Section 3. Annual Minimum and Maximum Volumes. The aggregate volume of gas to be purchased by Northern and delivered by Republic hereunder during the twelve months’ period beginning July 1 of each year shall not be less than 12,500,000,000 nor more than 36,500,000,000 cubic feet.
“Section 4. Rate of Delivery. So far as practicable, and without interruption, Republic shall deliver and Northern shall take gas in accordance with Northern’s market demands in the Omaha District, and Northern shall, from time to time, notify Republic of any anticipated substantial increase in such daily requirements; provided, however, that Republic shall never be obligated to deliver more than 100,000,000 cubic feet of gas during any 24-hour period; and provided further that it shall be deemed that Northern has complied with its obligation to take gas under this Aricle I if, on the 31st day of December of each year, Northern, so far as practicable, shall have taken during the preceding six months the volume of gas specified herein, and if on or before June 30 of each year Northern shall have taken during the preceding twelve months the total amount of gas herein required.
“ARTICLE II. Price and Payment. Section 1. Initial Price for Gas. For all natural gas delivered hereunder to and including the 30th day of June, 1951, Northern shall pay Republic six cents (6‡) per thousand cubic feet.
“Section 2. Adjustment of Pnce for Gas. For all natural gas delivered hereunder subsequent to June 30, 1951, the price to be paid shall be adjusted every third year as provided in subparagraph (a) and (b) of this Section, but in no event shall said adjusted price be less than six cents (6$) nor more than ten cents (10^) per thousand cubic feet.
“(a) By Agreement of Parties. Not later than June 30 of each third year, beginning with the year 1950, Northern and Republic shall negotiate and agree upon the price to be paid by Northern for gas to be delivered hereunder during the three-year period beginning with July 1 of the following year, (b) By Arbitration. In the event the parties shall fail to agree upon a price by November 1 of any year in which the price is to be adjusted, then the determination of such price for the three-year period, beginning with July 1 of the following year, shall be made by arbitration in the following manner: Subsections (b), (i), (ii), (iii) and (iv) omitted. Section 3 omitted.
“Section 4. Payment for Gas. On or before tire tenth day of each calendar month Republic shall render Northern a statement of the daily volumes of gas delivered hereunder by Republic during the preceding calendar month and shall accompany said statement with supporting meter charts which shall be returned to Republic after examination. Northern agrees to make payment on or before the 25th day of each month for all gas delivered hereunder during the preceding month.
“Section 5. Penalty for Failure to Take. If, in any year ending June 30 during the term of this agreement, Northern shall fail to take the annual volume of gas as provided in this agreement, then within twenty-five (25) days after the end of such year Northern shall pay Republic (at the price in effect hereunder for gas delivered during such year) for the difference between said volume actually taken and the volume of gas which Northern should have taken during said year.
“Section 6. Penalty for Failure to Make Prompt Payment. If at any time Northern shall fail to pay any amount due to Republic for gas delivered hereunder when the same is due, unless in good faith contested, interest thereon shall accrue at the rate of six per centum (6%) per annum from the date when such amount is due until the same is paid. If such failure to pay, unless in good faith contested, continues for a period of sixty (60) days, Republic may suspend deliveries of gas hereunder, but the exercise of such right shall be in addition to any and all other remedies available to Republic. Section 7. Payment for Gasoline (omitted). Section 8. Taxes (omitted).
“ARTICLE III. Measurement. Section 1. Unit of Measurement. The unit of measurement for natural gas delivered hereunder shall be one thousand (1,000) cubic feet of gas computed at a pressure basis of two pounds (2 lbs.) per square inch above fourteen point four pounds (14.4 lbs.) absolute pressure, and at a storage and flowing temperature agreed upon for the purpose of this contract to be sixty degrees (60°) Fahrenheit; corrections to be made for pressures according to Boyle’s Law and for actual temperature and specific gravity according to tests as hereinafter provided. Section 2. Correction Factors (omitted). Section 3. Meters (omitted). Section 4. Check Meter (omitted). Section 5. Protection of Meter Accuracy (omitted).
“ARTICLE IV. Quality. Section 1. Quality of Gas (omitted). Section 2. Penalty for Failure of Quality (omitted).
“ARTICLE V. Delivery Pressure and Point of Delivery. Section 1. Delivery Pressure. Delivery of natural gas hereunder shall be made by Republic at the highest pressure which can be efficiently maintained by the natural pressure of gas from wells connected to Republic’s gathering system, provided, however, that so long as the weighted average field pressure of the wells from which gas is at the time being delivered hereunder shall exceed one hundred fifty (150) pounds, the delivery pressure shall not be less than one hundred (100) pounds to the square inch. In the event that the weighted average field pressure of the wells from which gas is at the time being delivered hereunder shall fall to one hundred fifty (150) pounds (or less) said required delivery pressure may be reduced to not less than fifty (50) pounds per square inch.
“Section 2. Gathering System to be Maintained in Aid of Pressures. Republic’s gathering system shall at all times be maintained, and extensions thereof shall be so designed and maintained, as to deliver gas to Northern through pipe lines of ample size to conform to good practice so that the pressure drops through said lines from wells to point of delivery to Northern shall be as small as practicable.
“Section 3. Delivery Point. Delivery of natural gas hereunder shall be made in the Northwest Quarter (NW K) of Section 19, Township 33 South, Range 36 West, in Stevens County, Kansas, at the point where the gathering facilities of Republic interconnect with the pipeline system of Northern.
“ARTICLE VI. Republic’s Right to Audit Certain Records of Northern. Section 1. As to Volume of Gas Applicable to ‘Omaha District’ (omitted).
“Section 2. As to Gasoline Extracted (omitted).
“ARTICLE VII. Dedication of Leasehold Estates and Gathering Facilities. Section 1. Dedication of Gas Acreage. Republic agrees that from and after the effective date of this contract, all of its gas rights in the gas lands and gas leases set forth and described in Exhibit A, which is hereto attached and made a part hereof (covering approximately 76,800.35 acres, of which 75,000 acres shall at all times during the effective period of this contract constitute the minimum reserve hereunder) shall, subject to the rights of substitution and withdrawal under the terms and limitations hereinafter set forth, constitute a gas reserve which shall be, and is hereby dedicated to the fulfillment of this gas purchase contract; that said Exhibit A correctly describes the gas lands and gas leases in which the gas rights that are dedicated to the fulfillment of this contract exists; and that said gas rights in said gas lands and gas leases described in Exhibit A shall at all times during the life of this contract be impressed with said dedication; provided, however, that: Subsections (a), (b) and (c) omitted. Section 2’. Title to Developed Acreage (omitted). Section 3. Title to Undeveloped Acreage (omitted).
“Section 4. Dedication of Gathering System and Appurtenant Facilities. Republic agrees that from and after the effective date of this contract that part of its natural gas gathering system and appurtenant equipment as presently constructed and located in Stevens and Morton Counties, Kansas, together with all gas wells now drilled, and those which may hereafter be drilled, on the dedicated acreage (set forth in Exhibit A), and the lines used to connect such wells to said gathering system, and all replacements, improvements, additions to and betterments of said gathering system, wells, and appurtenant facilities, shall be, and the same are hereby, dedicated to the fulfillment of this contract. . . .
Section 5. Title to Dedicated Facilities (omitted).
“Section 6. Dedication to Be Exclusive. It is contemplated by the parties that the gas acreage dedicated under the provisions of Section 1 of this Article VII and the gathering system and appurtenant facilities dedicated under Section 4 of this Article VII shall at all times during the effective period of this contract be exclusively devoted to and used in the production, gathering and delivery of gas by Republic to Northern in the performance and fulfillment of this contract, and Republic covenants and agrees that it will not sell gas produced from any of the dedicated acreage (so long as the same remains dedicated) to any party other than Northern, and that it will not use, or suffer, or permit, any of the dedicated gathering system and appurtenant facilities to be used in connection with any sale or delivery of gas to any party other than Northern. Subsections (a) and (b) omitted. Section 7. Republics Obligation to Protect Dedication (omitted).
“ARTICLE VIII. Gas Supply and Other Particular Covenants. Section 1. Gas Supply. The obligation of Northern to take or pay for a minimum of 12,500,000,000 cubic feet of gas in each annual period of this agreement (July 1st to June 30, inclusive), is conditioned upon Republic having available for Northern from wells connected to its said gathering system and owned by or subject to contract to Republic an open-flow capacity at all times during each such period of not less than 342,465,750 cubic feet of gas per day.
“Republic, subject to the foregoing provisions concerning connected open-flow capacity and subject to the conditions hereinafter stated, shall always have the right to supply sixty per centum (60%) of the aforesaid requirements of Northern up to a maximum of thirty-six billion five hundred million (36,500,-000,000) cubic feet per year so long as the open-flow capacity of said wells connected to Republic’s said gathering system is at all times at least four times the average daily requirement of the four days on which Northern’s requirements from Republic shall be the greatest in any thirty-day period, and Republic is able to make delivery of said amounts at the delivery pressure herein provided.
“It is understood and agreed that if at any time during the continuance of this contract, the open-flow capacity of said wells of. or subject to contract to Republic, connected with Republic’s gathering system and available for Northern is less than four times the average daily requirement of the four days on which Northern’s requirements hereunder from Republic shall be the greatest in any thirty-day period (meaning by Northern’s said requirements hereunder sixty per centum of Northern’s total maximum requirements for serving said Omaha District from its said pipe line, but not exceeding one hundred million cubic feet per day) and if Republic is not able within ninety days thereafter to cause to be developed, maintained and connected with its said gathering system wells owned by or subject to contract to Republic having an open-flow capacity of at least four times the average daily requirement of tire four days on which Northern’s said requirements hereunder from Republic shall be the greatest in any thirty-day period, then Republic’s right to supply sixty per centum of Northern’s said requirements shall cease, and in that event Northern is privileged to contract for and purchase an additional supply of gas elsewhere. Northern, however, does agree to take as nearly sixty per centum of its aforesaid requirements from Republic as Northern’s conditions and gas purchase obligations contracted by it shall then permit. . . .
“Republic covenants and agrees that it will at all times maintain its gas wells in good condition and to use its best endeavors at all times to maintain a supply of gas adequate to meet Northern’s aforesaid requirements under all conditions of this contract.
“Section 2. Northerns Take in Case of Depletion. Northern agrees that if, through depletion of the supply of gas in the ‘Hugoton Area’, or for other cause beyond its control, Republic is unable to deliver gas in the volumes specified and in the manner provided in this contract, Northern, nevertheless, will continue to purchase gas from Republic and Republic shall continue to sell and deliver gas until the supply in the ‘Hugoton Area’ is depleted or reduced to the extent that Republic, due to such depletion or other cause beyond its control, is -unable to deliver at the pressures provided in Section 1 of Article V an average amount of five million (5,000,000) cubic feet per day during a period of six (6) consecutive months, in which event, Northern may at its election cancel this agreement.
“Section 3. Parties to Facilitate Peiformance. Each of the parties hereto expressly covenants and agrees with the other that it will at all times further and not obstruct the performance of the agreements, covenants and undertakings imposed upon the other party under this contract, and that each of the parties will fulfill and punctually perform and comply with each and all of their respective agreements, covenants and undertakings.
“Section 4. Default. It is covenanted and agreed that if either party shall fail to perform any of the obligations or observe and faithfully keep any of the covenants imposed upon it under and by virtue of this agreement, then in such event the other party may at its option terminate this agreement by proceeding as follows: The party not in default shall cause a written notice to be served on the party in default stating specifically the cause for terminating this agreement and declaring it to be the intention of the party giving the notice to terminate the same; thereupon the party in default shall have thirty (30) days after the service of the aforesaid notice in which to remedy or remove the cause or causes stated in the notice for terminating the agreement, and if within said period of thirty (30) days the party in default does so remove and remedy said cause or causes and fully indemnify the party not in default for any and all consequences of such breach, then such notice shall be withdrawn and this agreement shall continue in full force and effect. In case the party in default does not so remedy and remove the cause or causes or does not indemnify the party giving the notice for any and all consequences of such breach, within said period of thirty (30) days, then this agreement shall become null and void from and after the expiration of said period. Any cancellation of this agreement pursuant to the provisions of this Article shall be without prejudice to the right of Republic to collect any amounts then due them for natural gas delivered to the time of cancellation, and without waiver of any remedy to which the party not in default may be entitled for violations of this agreement. Section 5. Sale of Properties to be Subject to Contract (omitted).
“ARTICLE IX. Title to Gas (omitted). ARTICLE X. Liability of Parties (omitted). ARTICLE XI. Term of Contract. Subject to earlier termination under the provisions hereof, this agreement shall continue in force from the date hereof for a period of twenty (20) years, and thereafter so long as Republic shall have gas available for sale to Northern, as and to the extent provided in and subject to the terms and conditions of this agreement.
“ARTICLE XII. Miscellaneous. Section 1. Notices (omitted).
“Section 2. Commission Jurisdiction. This contract is subject to all valid legislation with respect to the subject matter hereof, either State or Federal, and to all valid present and future orders, rules and regulations of duly constituted authorities having jurisdiction.
“Section 3. Assignment. This contract, and each of its covenants and obligations, shall inure to the benefit of and be binding upon the successors, trustees and assigns of the respective parties hereto.
“Section 4. Former Gas Purchase Contracts. Republic and Northern mutually agree that this Contract is a simplified restatement of their contractual obligations as ‘Seller’ and ‘Buyer’ respectively, of natural gas from the Hugoton Gas Field, originating under and established by the Gas Purchase Contract dated May 27, 1930, and all agreements supplemental of and amendatory thereto, and as such supersedes and cancels said Contract of May 27, 1930.” | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court vacating a judgment and granting a new trial in an action brought to enjoin the assessment of certain property for a portion of the costs of paving a street in the city of Wichita. For the sake of clarity, appellee Virginia Babb will be referred to as plaintiff and the appellants, City of Wichita, the Board of City Commissioners consisting of W. C. Salome, L. A. Donnell, Earl K. Duke, F. Russell Jump and Floyd D. Amsden, and C. C. Ellis, City Clerk, as defendants.
The facts insofar as they are pertinent to the issues involved herein may be stated as follows: Plaintiff filed suit in the lower court seeking to enjoin the defendants from assessing her property with a portion of the costs of paving Yale Boulevard; after several amendments to her petition, issues were joined between the parties and on December 20,1950, a pretrial conference was called pursuant to G. S. 1949, 60-2705 and 60-2902. This conference was held before a judge pro tem and extended throughout two days. The parties stipulated to most of the facts and to admission of exhibits in support thereof. Certain of plaintiff’s allegations contained in her amended pleading were by the court ordered deleted. At the conclusion of the conference the court proceeded with the trial. Plaintiff offered certain oral testimony to support issues not agreed upon at the conference, which testimony was rejected by the court on the ground it was immaterial. At the conclusion of plaintiff’s evidence, defendants demurred to the facts as admitted and the petition as amended on the ground that they failed to state a cause of action against the defendants. At this point the plaintiff’s counsel objected to argument of the demurrer for the reason that the record was not complete as to the facts and a dispute remained as to many of them, whereupon the court sustained defendants’ demurrer and made certain findings of fact and conclusions of law and rendered judgment thereon on December 21, 1950. On December 22, plaintiff filed a motion for a new trial (G. S. 1949, 60-3003) and on December 26, 1950, filed her amended motion for a new trial alleging as grounds, abuse of the court’s discretion; that plaintiff was not offered a reasonable opportunity to present her evidence and to be heard on the merits of the case; erroneous rulings of the court; and that the decision was given under the influence of passion and prejudice, and was in whole or in part contrary to the evidence. On January 6, 1951, the last day of that term of court, the parties appeared before the judge pro tern to settle the terms of the journal entry of judgment rendered by the court on December 21. As to what took place at this time, the record does not disclose, for the reason that no court reporter was present. However, the record does disclose that the terms of the journal entry of judgment were agreed upon. Plaintiff’s motion for a new trial was by the court overruled.
Plaintiff contends she objected to the court hearing said motion for new trial for the reasons that no court reporter was present, that they were not prepared to take up the motion, and wished to reoffer the excluded evidence profferred at the trial of the action. The journal entry of the court overruling the motion for new trial provides in pertinent part as follows:
“Now, on this sixth day of January, a. d., 1951, this cause comes on to be heard on the amended motion of the plaintiff for an order, vacating and setting aside the findings of fact and conclusions of law and the sustaining of the demurrer of the defendants ... as rendered on the twenty-first day of December, a. d., 1950; and granting plaintiff a new trial for the reason that the rights of said plaintiff were substantially affected by- said rulings, on the grounds set out in said amended motion. . . .
“And the court stated that because of the fact that a demurrer to the evidence was an appealable order, he did not deem it necessary to hear argument on said amended motion for a new trial.
“And Counsel for plaintiff said that he desired to present certain specific points, justifying the sustaining of the motion for a new trial, and the argument connected therewith and the Court refused to hear said argument.
“It Is . . . Ordered . . . that plaintiff’s motion for a new trial be and the same is hereby overruled.”
At the following term of court on January 24, 1951, plaintiff filed a motion to vacate and set aside the order of the court (G. S. 1949, 60-3007, Third) of January 6, 1951, overruling plaintiff’s motion for a new trial and asserted the following reasons:
“1. Plaintiff was not permitted by the Court to present material evidence which was excluded in the pre-trial conference and at the trial of the action, in accordance with Statute 60-3004, of the General Statutes of Kansas, 1935.
“2. Plaintiff was not permitted to complete her record for appeal by presenting excluded evidence.
“3. Errors of the Court in the exclusion of evidence are not reviewable on appeal unless plaintiff is permitted to present them to the Court.
“4. Plaintiff was not permitted to justify said Amended Motion with grounds therefor and with argument.
“5. Although plaintiff’s Amended Motion for a New Trial was pending, her appearance in Court was for the purpose of obtaining an agreement on the form of the Journal Entry, reciting the proceedings and Order of the Court, on the twenty-first day of December, 1950, and not for the purpose of hearing on said amended Motion for a New Trial; but the Court insisted on taking up said amended motion and overruled said amended motion, refusing to hear excluded material evidence and argument. . . .”
This motion was heard by the regular trial judge on February 1, 1951. As to what transpired at this hearing, nothing is shown in the record other than an affidavit of plaintiff and statement by her counsel. The court made the following order:
“Now, on this first day of February, 1951, this cause comes on for hearing on the motion of the plaintiff to vacate and set aside the Order of the Court, entered on the sixth day of January, 1951, overruling plaintiff’s Amended Motion for a New Trial herein; for the reason that there was irregularity in obtaining the Order . . .
“. . . plaintiff submitted her proof in support of her claim that there was irregularity in obtaining the Order, overruling her Amended Motion for a New Trial, said irregularity in obtaining the order being one of the grounds for vacating an Order of the Court, after term, as set forth in the 1935 General Statutes of Kansas, 60-3007.
“And the Court, having heard the evidence and being fully advised in the premises . . . ruled that plaintiff had asserted a valid cause of action and that plaintiff’s Motion to Vacate the Order overruling her Amended Motion for a New Trial should have been sustained.
“It Is . . . Ordered . . . that plaintiff has asserted a valid cause of action and that the Order of this Court, entered on the sixth day of January, 1951, overruling plaintiff’s Amended Motion for a New Trial, should be and it is hereby vacated and set aside for irregularity in obtaining said Order.”
On February 17, 1951, plaintiff presented her motions for new trial filed on December 22 and 26, 1950. At this hearing, the plaintiff reoffered her testimony which had been excluded by the judge pro tem on the trial of the case on its issues at the previous December hearing. After the hearing on the motion, the court granted a new trial. The amended order reads in pertinent part as follows:
“It Is . . . Ordered . . . That plaintiff’s motion for a new trial of the issues involved be and the same is hereby sustained and granted because the Court is dissatisfied with the decisions of this Court, rendered on the 21st day of December and the 22nd day of December, 1950.”
Defendants appeal to this court asserting that (1) the trial court in the January term erred in vacating its order entered in the October term overruling plaintiff’s motion for a new trial; and (2) the trial court erred in granting plaintiff a new trial by its order of February 17, 1951, after overruling plaintiff’s motion for a new trial in a prior term of court.
Defendants contend that the court had no jurisdiction at a subsequent term to vacate its judgment. We cannot follow this contention. G. S. 60-3007 provides in part:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Third. For . . . irregularity in obtaining a judgment or order.”
An irregularity has been defined as a departure from some prescribed rule of legal procedure; a deviation from certain provisions of the statute designed to secure method and convenience in procedure; the doing or not doing of that, in the conduct of a suit at law, which, conformable with the practice of the court, ought or ought not to have been done in the case; a violation or nonobservance of established rules and practices and the want of adherence to some prescribed rule or mode of proceeding. (48 C. J. S. 771; Ballentine’s Law Dictionary, 2d ed., 686; In re Ellern, 23 Wn. (2d) 219, 160 P. 2d 639.)
The power of the court to vacate or set aside its judgments at a subsequent term for irregularity is so essential to the orderly administration of justice that it will not be denied' unless by virtue of legislation admitting no other reasonable construction. (Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799; Phoenix Mutual Life Ins. Co. v. Aby, 144 Kan. 544, 61 P. 2d 915.)
While no accurate classification of irregularities can be made, it may be said that an overt act of the trial court violative of the established rules of orderly procedure or of a right to a fair and impartial trial amounting to misconduct, may be regarded as an irregularity (Gray v. Robinson, 33 Cal. App. (2d) 177, 91 P. 2d 194).
The question, therefore, squarely presented to this court is whether there was an irregularity within the foregoing definition in rendition of the judgment on January 6, 1951, and in denial of plaintiff’s motion for a new trial.
It is a well-established rule of this court that one of the principal purposes of a motion for a new trial is to give the defeated party an opportunity to put into the record her excluded evidence when she has specified that as one of the grounds in her motion for new trial. Errors in exclusion of evidence are trial errors and if not presented on a motion for new trial will not be considered on appeal. (McKinney v. Sackett, 144 Kan. 290, 58 P. 2d 1121; State v. Zeilinger, 147 Kan. 707, 78 P. 2d 845.) When a ground for a motion for a new trial is error in exclusion of evidence, and such evidence is oral and not brought into the record, it must be produced at the hearing on a motion for a new trial. (Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; In re Estate of Regie, 170 Kan. 558, 228 P. 2d 722.) A proffer of excluded evidence stating the evidence the party intends to introduce is not sufficient. (Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820.) While it is true that most of the evidence was agreed upon by the parties at the conference, plaintiff did offer additional testimony on facts on which they were unable to agree. The offer of this testimony was refused by the court on the ground it was immaterial, and he rendered judgment in favor of the defendants on the pleadings and stipulations. If the plaintiff was to protect her record for appellate review on trial errors, it was necessary for her to file a motion for a new trial and reoffer the excluded testimony. The record discloses that it was the last day of the term, no .court reporter was present, and the plaintiff was denied her right to reoffer the evidence for the purpose of appeal. The court could not limit her right to appeal by stating that she could appeal from the order sustaining the demurrer, and thereby refuse to hear her motion for a new trial. Defendants contend that the plaintiff could have appealed from the court’s order overruling her motion for a new trial, but her appeal would have been of no avail in the absence of reoffering the excluded testimony, and the presentation to the trial court of other trial errors complained of in their motion for a new trial.
It may be briefly stated that where a trial court on hearing of a motion for a new trial under G. S. 1949, 60-3004, ignores and refuses petitioner’s request to reoffer certain rejected evidence which was presented at the trial of the cause on its merits, and fails to have a court reporter available for petitioners to make a proper record for review, refuses to hear or consider petitioner’s motion for a new trial, and attempts to limit petitioner’s right for appellate review, it does more than commit a mere “error of law.” Such action of the court amounts to an irregularity authorizing relief by proceedings to vacate the judgment under G. S. 1949, 60-3007, Third, notwithstanding the term had passed in which such judgment was rendered, as long as such action to. vacate for irregularity was com menced within three years after the rendition of such judgment. (G. S. 1949, 60-3008.)
The trial court found specifically that the order of January 6, 1951, overruling plaintiff’s amended motion for new trial should be vacated and set aside for irregularity in obtaining the order and we find nothing in the record to indicate the contrary or that the court abused its discretion in so ordering.
Defendants next contend the trial court erred in granting plaintiff a new trial after overruling plaintiff’s motion for a new trial in a prior term of court, and contend that no such authority exists under G. S. 1949, 60-3002, which provides:
“A motion for a new trial shall not be sustained and a new trial shall not be granted by the judge of any district court of the state of Kansas, for the reason that a different judge is hearing the motion for a new trial from the judge that tried the case: Provided, That the evidence has been taken in such trial and is available for the judge hearing the motion for a new trial and such judge has the facts before him in passing on such motion.”
In interpreting this statute, we said in Prather-Wolfe Merc. Co. v. Carnes, 135 Kan. 590, 592, 11 P. 2d 1018:
“The court regards R. S. 60-3002 as meaning that if the evidence has been taken and is available, the succeeding judge shall pass on the motion for new trial as if he had presided at the trial. If the evidence has not been taken, or if the evidence has been taken but is not available to the judge, so that he is not able to determine whether, on the whole case, the motion should be allowed or denied, a new trial should be granted. In the latter event the motion is to be considered no further than as an application for a new trial. The new trial is not granted on account of merit of the stated grounds. It is granted because the court is not in position to determine merit or demerit, and is not in position to exercise the judicial discretion permissible when ruling on a motion for new trial.”
In the instant case, the proceedings were taken at the pretrial conference and subsequent trial, including the stipulation as to certain evidence and the plaintiff’s offer of testimony on issues not agreed upon by the parties. This record was available to the trial court when considering the motion for a new trial. The record discloses that the plaintiff reoffered the testimony which was excluded at the trial of the case on its issues. The court found after hearing the evidence that a new trial should have been granted because it was dissatisfied with the decisions of the court rendered on December 21 and 22, 1950.
The record is not clear as to all that transpired at the proceedings on the motion for a new trial. However, there is a presumption that the court had the transcript of the record and read it, and in the absence of an affirmative showing to the contrary, we must assume that the action of the court was regular and in accordance with the law. (Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981.)
Trial courts are vested with a very large and extended discretion in granting 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. (City of Sedan v. Church, 29 Kan. 190.) When a trial court grants a new trial generally upon the ground that it is not satisfied with the verdict or for any of several reasons not specifically stated, this court does not interfere with such rulings. (Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869; Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440.)
In view of what has been said, other questions raised on the appeal need not be discussed. The judgment of the lower court in vacating the judgment of January 6, 1951, and granting a new trial ab initio is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a part of the judgment rendered in a divorce action. Plaintiff-appellee filed an action for divorce and asked that the property of plaintiff and defendant be equitably divided. Thereafter defendant-appellant filed his answer and cross petition in which he denied generally the allegations of plaintiff’s petition and prayed for a divorce and an equitable division of the property accumulated during the marriage relation. Trial was had on November 10, 1950, and a divorce was granted plaintiff by reason of the fault of defendant, from which judgment there was no appeal, and the cause was continued for the purpose of determining the division of property. Trial was resumed on June 1, 1951. The parties stipulated as to the value of real and personal property owned by the parties. At this hearing, on application of plaintiff and over objections of defendant, the court permitted plaintiff to file a supplemental petition asking for permanent alimony as well as a division of the property. After hearing evidence as to property owned by the parties and accumulated during the marriage relation, the court took said cause under advisement. Three days later, on June 4, 1951, a journal entry of judgment was filed showing that the divorce was granted as of November 10, 1950, and that the court on June 1, 1951, awarded plaintiff some household furniture and a one-half interest in 320 acres of land in Meade county, and awarded to defendant all the remainder of the property, both real and personal, consisting of farms, city property and cattle. From the latter portion of the court’s order of judgment, defendant has appealed to this court asserting three specifications of error: (1) In permitting plaintiff to file an amended petition asking for permanent alimony after the evidence had been submitted; (2) in allowing plaintiff permanent alimony and not limiting it to a faff and equitable division of the property; and (3) in allowing plaintiff as permanent alimony the interest in the Meade county farm.
At the outset, this court has difficulty in finding anything in the record for review. Defendant concedes in this court that his complaints were all trial errors and that he realizes he did not file a motion for a new trial. G. S. 1949, 60-3001 provides that a new trial is a re-examination in the same court of an issue of fact after a decision by the court. G. S. 1949, 60-3003 provides that an application for a new trial must be made by written motion stating the grounds thereof and filed within three days after the decision is rendered unless unavoidably prevented. It has been decided many times by this court that, ■' absent motion for new trial, mere trial errors are not open to appellate review. Many of our cases are set forth in Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105, and again in Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105, and In re Estate of Rundle, 158 Kan. 682, 149 P. 2d 337. The mentioned rule has been reiterated in the very recent case of Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553. Trial errors include among other things abuse of discretion by the court, misconduct of the parties, not being afforded a reasonable opportunity to be heard on the merits of the cause, erroneous rulings of the court, decision given under influence of passion and prejudice, granting permission to file amended pleadings, misconduct of court or counsel, decision in whole or in part contrary to the evidence, and the general miscellaneous irregularities of procedure and practice for which new trials may be granted by the trial court on timely motion of the defeated litigant.
Defendant-appellant recognized the foregoing to be the rule of this court, but his contention is that the action was finally submitted to the court on June 1, 1951; that the court took the same under advisement and later rendered judgment and the journal entry of judgment was filed of record on June 4, 1951, without notice to1 counsel for defendant, in violation of Rule 47 of this court (169 Kan. XVIII) which provides that when any matter or cause is submitted to the court and taken under advisement, the court at the time of de.ciding same shall notify counsel of record in such time and manner as will enable counsel to take the necessary steps under the statute to protect their rights for review or otherwise. Defendant further contends that we should now consider the specifications of error in the absence of a motion for new trial for the reason that he had no knowledge of the judgment in this action until after the three-day limitation (G. S. 1949, 60-3003) for filing of same had passed and that he was unavoidably prevented from filing his motion for a new trial within that period of time. The trouble with defendant’s contention is that the record does not bear out these facts other than his statement contained in the abstract and brief and unapproved journal entry. There is nothing in the record proper to indicate to this court that the defendant was not notified of the court’s decision or the filing of the journal entry of judgment. But even accepting the statement of counsel for defendant as correct that the court’s decision and the filing of the journal entry of judgment were without notice to him until after the three-day period had passed, the defendant then filed no petition or-'motion in the court below to vacate or set aside its judgment or to extend his time to file a motion for new trial, nor asked the court to consider a belated motion for new trial on the ground he was unavoidably prevented from filing such motion within the statutory period.
In the case of Carnine v. Bacon, 131 Kan. 643, 293 Pac. 392, we were confronted with a somewhat similar problem and there considered a belated motion for new trial which was filed seven days after judgment was rendered by the trial court. However, in justification of the failure to file within the three days prescribed by statute, the appellant showed the judgment was entered without previous notice to appellant or her attorney. In discussing G. S. 1949, 60-3003, and Rule 47 (then Rule 30) of the Supreme Court (169 Kan. XVIII), Justice Jochems speaking for this court stated:
“Since the code did not make any positive provision as to notice in a situation where the case has been taken under advisement and retained by the trial court for some time, this court deemed it advisable to make a rule covering such situations. The ruling does not contravene the positive provision of any statute for the reason that there is no statute relating to the subject of notice of rendition of judgment in cases taken under advisement. . The purpose of the code was to devise a system of procedure by which justice could be more adequately rendered and technicalities brushed aside. It was a progressive step intended to improve procedure and to better enable the courts to carry out their functions so as to do justice to all parties as nearly as may be. In adopting rule 30 this court recognized the fact that' in instances where the trial court has taken a case under advisement and held it for a long time and then rendered judgment without any notice to the parties, it is impossible for attorneys to protect their clients by filing a motion within the time prescribed by R. S. 60-3003. In such cases positive injustice has been done litigants through no fault of their own or that of their attorneys. In order to rectify this situation and to safeguard the rights of litigants the supreme court very wisely adopted rule 30, and we hold, therefore, that under the circumstances in this case the motion for new trial was filed in time.”
In the instant case no motion for a new trial was ever filed, the facts as related by counsel for defendant insofar as the record discloses were never called to the attention of the trial court and the trial errors here complained of were never presented to the trial court.
The very purpose of a motion for a new trial is to give the trial court an opportunity to re-examine rulings made in the course of the trial and to correct any errors in the proceedings, so that the oar ties may avoid the trouble and expense of having them cor rected on appeal. (Collins v. Morris, 97 Kan. 264, 155 Pac. 51; Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150; Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1).
We have repeatedly held that where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Kendall v. Kendall, 171 Kan. 222, 225, 231 P. 2d 212; Anderson v. Shannon, 146 Kan. 704, 73 P. 2d 5; Lish v. Wehmeyer, 158 Kan. 339, 147 P. 2d 712; Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309.)
In the instant case it is manifest that the trial court had no opportunity to reconsider or correct any objections or errors here complained of which might have been assigned as grounds for a new trial and they cannot be considered here for the first time.
The judgment of the trial court is affirmed.
Smith, J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
Plaintiff commenced this action by the filing of a verified petition wherein it is alleged that under an oral contract with the defendant’s duly authorized agent plaintiff agreed to compile 140 abstracts of title for defendant, covering a tract of land lying adjacent to the city of Emporia which was to be dedicated and platted as an addition to such city and that defendant agreed to pay a price of $8 for each of the abstracts so prepared and compiled when completed. The pleading further states that plaintiff completed and had such abstracts of title ready for delivery on September 24, 1948, and that defendant refused to accept or pay for the same in conformity with the terms of the agreement. It then asks for judgment against defendant in the sum of $1,128 (that being the total amount that would be due for the 140 abstracts of title at $8 each) with interest at six percent from September 24, 1948, and the costs of the action.
The defendant responded to plaintiff’s petition by answer. This pleading denied each and every material allegation set forth in the petition, asked that all relief sought by plaintiff be denied and prayed that defendant recover its costs.
With issues joined, as heretofore related, the cause was tried by a jury. After plaintiff had adduced its evidence defendant demurred thereto on grounds (1) the evidence failed to show an offer, an acceptance, and consideration constituting a contract under the laws of the state and (2) such evidence disclosed plaintiff had failed to fulfill conditions of the contract in that he had not delivered or offered to deliver defendant’s abstracts of title as defined by the laws of the state and the Supreme Court. When this demurrer was overruled defendant proceeded to adduce its testimony. Plaintiff then adduced rebuttal evidence. At the close of all testimony defendant orally moved the court for a directed verdict in its favor. This motion was also overruled. Plaintiff then moved for an instructed verdict with like results. Thereupon the court instructed the jury which, after deliberation, returned a general verdict in favor of plaintiff in the amount of $1,000 together with its answers to special questions submitted by the court.
For informative purposes, although the rulings thereon are not subject to appellate review because neither the plaintiff nor the defendant filed a motion for a new trial, it is to be noted that divers post trial motions were filed by each of the parties and that all of such motions were overruled by the trial court.
On April 18, 1951, following the overruling of its post-trial motions, defendant gave notice of appeal to this court from the ruling on its demurrer to plaintiff’s evidence and its motion for a directed verdict. The next day, all parties being present, the trial court announced in open court that it was dissatisfied with the verdict of the jury and that it was setting aside such verdict and granting a new trial. Plaintiff then gave notice of a cross-appeal. Subsequently the cause was certified to this court for appellate review in the manner prescribed by our statute.
For reasons presently to be disclosed we shall not attempt to detail all the errors assigned by the parties in their respective specifications of error. For the moment it suffices to say that one assigned error, common to both specifications, is that the trial court erred in ordering a new trial and another that such court erred in overruling each of the parties’ motion for a directed verdict.
The orders overruling each of the motions for a directed verdict require no discussion for they are not such orders as are appealable under onr statute. See, e. g., Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 668. See, also, Palmer v. Julian, 161 Kan. 619, 170 P. 2d 813, where, as in the case at bar no final judgment had been rendered and the appealing party nevertheless was attempting to appeal from an order overruling his motion for a directed verdict at the close of all the evidence, we held:
“An order overruling a motion for a directed verdict is not appealable and, in the absence of a judgment from which appeal is taken, is not reviewable.” (Sylfl.)
Neither party strenuously argues his assignment of error to the effect the trial court erred in granting a new trial and we have searched the briefs in vain for an outright contention on the part of either of them that its action in so doing constituted an abuse of its discretion. Moreover, we have reviewed the record and find nothing to warrant any such conclusion. Hence we are constrained to hold that action did not result in reversible error. The established rule in this jurisdiction is that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside and grant a new trial (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Myers v. Wright, 167 Kan. 728, 208 P. 2d 589) and this court, on appellate review, has always held that an order granting a new trial by the court below will not be disturbed or reversed unless abuse of discretion is apparent (Simon v. Simon, 69 Kan. 746, 77 Pac. 571; Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20; Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440; Schroeder v. Texas Co., 169 Kan. 607, 219 P. 2d 1063). This, we may add, is the rule whether the new trial is granted on the motion of the parties or on the trial court’s own motion. Many other decisions adhering to the rule just announced appear in our reports but to list them would merely burden this opinion. If desired they can be found by reference to West’s Kansas Digest, Appeal and Error, §§ 977-979, incl., and Hatcher’s Kansas Digest, Appeal and Error, §458.
Except for those to which we have heretofore referred all other errors assigned by the parties in their initial specifications of error relate to controverted issues of fact which are not subject to a review in the absence of a motion for a new trial or to other trial errors which become immaterial in view of our conclusion the trial court’s action in granting a new trial was not erroneous. Therefore nothing would be gained by specific reference to them and they will not be discussed or considered.
Nevertheless one question remains which requires our attention. Appellant’s original specifications of error as filed in this court did not purport to challenge the propriety of the trial court’s action in overruling its demurrer to the appellee’s evidence. However, within three months after the filing of those specifications and some five weeks prior to the date set for the hearing of the appeal in this court, it sought and obtained permission to amend such specifications of error by adding thereto a specification of error challenging that action. Permission to make the amendment, it should be added, was granted after this court had ascertained that appellee had discussed the propriety of the ruling complained of in the proposed amendment and concluded that he would not be prejudiced or surprised by that action. Moreover, it is to be noted that appellant’s brief in support of such specification was filed with the clerk of this court at least a month prior to the date on which the cause was to be heard, in ample time for appellee to meet all issues therein discussed by a reply brief if he desired or deemed it necessary to do so. Notwithstanding, appellee insists appellant is not entitled to be heard or given consideration on this amended specification of error. Under the conditions and circumstances, heretofore related, even though we do not approve of appellant’s failure to specify all of the errors on which it relied as grounds for reversal of judgment in its abstract in accord with our established rule, we are inclined to and do not believe it should be deprived of the right to be heard thereon. The situation and contentions advanced by appellee with respect to appellant’s right to be heard are not unlike those presented and answered in our recent decision in General Motors Acceptance Corp. v. Davis, 169, Kan. 220, 218 P. 2d 181, where we said and held:
“The cause was submitted for trial by the court upon the agreed statement of facts and on August 13, 1949, the trial court rendered judgment in favor of the corporation. Davis perfected this appeal and on October 12, 1949, he filed his combined abstract and brief in this court, wherein, on the same page, he stated his specification of error and also the question involved in the appeal. On March 29, 1950, the corporation filed its brief included in which is an argument that the specification of error set out in Davis’s abstract presents no question for appellate review. On April 4, 1950, Davis, without specific permission, amended his specification of error, and on April 5, 1950, the corporation filed its objections to the amendment being given consideration. It is not necessary that we review decisions cited in the corporation’s brief, for what is said in them was considered in the very recent case of Dupont v. Lotus Oil Co. 168 Kan. 544, 213 P. 2d 975, where it was held:
“ ‘When an appellant’s right to be heard on appeal is challenged on grounds of noncompliance with such rule and it appears from the record he has made no attempt to conform with its requirements until the day the cause is set for argument his appeal will be dismissed.’ (Syl. ¶ 3.)
“It is clear from the abstract that the question in the trial was, and in this court is, the priority between the right of the holder of a conditional sales contract which has been duly filed as provided by statute (G. S. 1935, 58-314) covering an automobile and the right of the purchaser of the automobile from the maker of the contract. As originally prepared the combined abstract and brief, by the specification of error and the statement of the question involved, were such that the corporation was not in any manner misled or disadvantaged, and in its brief it has covered the question above stated. The appeal will be considered.” (pp. 221 and 222.)
In giving consideration to the question whether appellee’s evidence was sufficient as against appellant’s demurrer it must be kept in mind that in passing on a demurrer to evidence an appellate court is concerned only with evidence and inferences to be deduced therefrom which support a cause of action, that it cannot weigh the testimony and that it must accept all competent evidence as true and indulge all reasonable inferences to be drawn therefrom in favor of the party adducing it (Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; Picou v, Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686; Ripper v. City of Canton, 166 Kan. 185, 199 P. 2d 815 and Phillips v. Doyle, 167 Kan. 376, 378, 207 P. 2d 465).
When appellee’s evidence is examined and tested by the foregoing rule we have little difficulty in concluding that the trial court did not err in overruling the appellant’s demurrer. The fair import of his testimony, which we pause to note was the only evidence adduced in his behalf, is to the effect he had entered into a contract with the appellant, the terms of which were those alleged in his petition, and that pursuant to such contract he had compiled and had either delivered or was ready to deliver all abstracts of title, fully completed, contemplated by its terms. In addition he testified that after he had delivered the major portion of such abstracts and had notified appellant that the others were ready for delivery the latter, through its conceded agent, advised him appellant had received divers statements (computed at $8 per abstract) for the amount appellee claimed to be due for the abstracts and that appellant would pay for such abstracts in accord with the statements as soon as it had completed the sale of some of the tracts for which the abstracts had been prepared and that thereafter appellant had failed to pay for such abstracts as it had agreed to do. Appellee also testified that the abstracts were completed and dated September 24, 1948, that about 100 of them were delivered approximately two months later, and at that time he was told by the selfsame agent not to deliver any more because appellant did not have room for them. We are not disposed to labor the evidence further. Accepting the foregoing testimony as true, and giving it the benefit of all inferences to which it is entitled under the rule, it shows a meeting of the minds of the parties and a completed contract for the making and delivery of the 140 abstracts of title at $8 each. This was sufficient to withstand a demurrer and could only be met by testimony on the part of the appellant which would refute it. In the face of such testimony it cannot be said that for purposes of the demurrer appellee had failed to establish a cause of action. Assuming as appellant contends, without deciding the points, that appellee had neglected to attach his certificate to all the abstracts in question or had failed to compile and have ready for delivery abstracts which did not conform with its version of the contract does not alter the situation. Such facts, if true, when established to the satisfaction of the jury, might be grounds for a reduction of the amount due under the contract or for a verdict denying any recovery whatsoever. Even so, the burden was on appellant to show not only the existence of those facts but that their existence violated the terms of the agreement between the parties and was of such character as to defeat recovery under its terms.
We are unable to find anything in the record to warrant a conclusion the trial court erred in overruling the demurrer to appellee’s evidence or in granting a motion for a new trial on its own volition. Therefore its decisions with respect to such matters must be approved and affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court striking a substantial portion of appellant’s defense from his answer.
A brief statement of facts follows: This action was instituted jointly by the state of Kansas on relation of Dale H. Corley as county attorney for Finney County, Kansas, and the State board of Medical Registration and Examination of Kansas to enjoin the appellant, V. A. Leopold, D. O., from the alleged unlawful practice of medicine and surgery. The petition alleges that one Monroe Hubbell entered the hospital at Garden City, Kansas, owned and operated by the appellant, and that thereafter, despite the protest of one Ella Glassell, mother of Monroe Hubbell, appellant removed Monroe’s tonsils; that a local anesthetic was used and that thereafter penicillin was administered. The petition further alleges that performance of the tonsillectomy and administration of the drugs constituted an unlawful practice of medicine and surgery in violation of the laws of the State of Kansas.
Appellant’s answer consisted of a general denial, certain specific denials and for further answer, and in the alternative as a full and complete defense (in the event it should hereafter be determined that the acts, or any of them, of the appellant, complained of in the petition, constituted a technical violation of any of the laws of the state of Kansas) alleged:
a. That the treatment of the said Monroe Hubbell by this Defendant was obtained as a part of a conspiracy to entrap this Defendant into an alleged violation of the laws of the State of Kansas.
b. That said conspiracy was formulated by R. J. Maxfield, M. D., Garden City, Kansas, and Gervais F. Reed, Manager Garden City Daily Telegram, Garden City, Kansas, and other sundry persons including sundry law enforcement officers (responsible for the enforcement of the statutes in question) the exact names of which are unknown to this Defendant, who by means of false and malicious statements and representations to the said Ella Glassell, conspired to induce this Defendant to furnish the proper osteopathic treatment (now complained of) for the said Monroe Hubbell, son of Ella Glassell, for the sole purpose of instituting this action against this Defendant.
c. That if the proper osteopathic services furnished for the benefit of the said Monroe Hubbell constituted any violation of any laws of the State of Kansas, then that such violation occurred only by reason of a calculated plan of entrapment on the part of the said R. J. Maxfield, M. D., and Gervais F. Reed, and sundry other persons including sundry law enforcement officers (responsible for the enforcement of the statutes in question) the exact names of which are unknown to this Defendant, and as such cannot constitute the basis of the purported cause of action attempted to be set out in the Petition filed herein.
Appellees then filed a motion to strike appellant’s defense of entrapment above set forth. The motion to strike was sustained by the trial court and this appeal followed.
The sole question presented to this court is whether the trial court erred in striking from defendant’s answer the defense set forth in (a), (b) and (c) above. At the outset it might be stated that under the circumstances we need not discuss whether the facts and proof will eventually establish the allegations contained in appellant’s answer; the question before this court at this time is one of right under the statutes to plead a defense. This court has always adhered to the rule that a defendant in an action may set forth in his answer a statement of any new matter constituting a defense, and may set forth as many grounds of defense, counterclaim, setoff, and for relief as he may have whether they be such as have heretofore been denominated legal or equitable or both. (G. S. 1949, 60-710; Hatcher’s Kansas Digest, Pleadings, § 103.)
We have stated many times, as will be disclosed by the cases cited under section 60-710, that a defendant has a right to form his pleadings so as to meet such conditions and contingencies of the case as his opponent might possibly attempt to prove. (Funkhouser Equipment Co. v. Carroll, 161 Kan. 428, 168 P. 2d 918; Kennedy v. Monroe, 165 Kan. 168, 173, 193 P. 2d 220.)
It will be noted that no question was raised as to the sufficiency of allegations in the answer by a motion to make more definite and certain. Kansas long ago adopted the statutory rule of liberal construction of pleadings. G. S. 1949, 60-736 reads:
“In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.”
(See also Campbell v. Kansas Power & Light Co., 165 Kan. 134, 193 P. 2d 177; Owens v. Deutch, 156 Kan. 779, 137 P. 2d 181, and cases therein cited, pp. 783-4).
In construing the above statute, this court has repeatedly held that where a demurrer is filed to a pleading or a motion to strike a pleading on the ground that it does not state a cause of action or defense without first presenting a motion to have the allegations of the pleadings made more definite and certain, the allegations of such pleading will be liberally construed in favor of the pleader.
In view of the liberal construction given to defendant’s answer, do the allegations hereinbefore set forth as stricken allege facts sufficient to constitute the defense of entrapment? We think they do. Defendant alleged a conspiracy to induce defendant to violate the laws of Kansas and that the conspiracy was formulated by the parties set forth therein including sundry law enforcement officers responsible for enforcement of the laws of the state.
This brings us to the important question whether the defendant can plead entrapment as a defense to his action in this state. This court has recognized the rule that entrapment may be pleaded as a defense to an action as early as the year 1894 in the case of State v. Stickney, 53 Kan. 308, 36 Pac. 714, and as late as the year 1945 in the case of State v. Herschberger, 160 Kan. 514, 163 P. 2d 407. See also State v. Lovell, 127 Kan. 157, 272 Pac. 666; and Sorrells v. United States, 287 U. S. 435, 77 L. Ed. 413, 53 S. Ct. 210, 86 A. L. R. 249, which held that the defense of entrapment was available to a defendant.
It is not the function of this court at this time to decide whether the defense of entrapment as pleaded by the defendant can be proved on trial of the action, but rather whether it was available as a defense. The question of evidence or proof as to the facts therein alleged is not before us, but merely the right to plead a defense under the code of civil procedure. It is paramount in our system of justice that defendant be given the right to plead all available defenses and an opportunity to present his evidence in the light of those defenses. We are of the opinion that the allegations of the answer sufficiently plead the defense of entrapment and that the trial court was in error in striking the defense so pleaded.
The judgment of the lower court is reversed with instructions to reinstate the stricken portion of defendant’s answer. | [
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The opinion of the court was delivered by
Smith, J.:
This is an appeal by the state from an order sustaining a motion to quash an indictment.
Defendant was indicted for perjury by a grand jury. The indictment was as follows: .
“The grand jurors of the State of Kansas, duly impaneled, charged and sworn by the court aforesaid, on their oaths do find, charge, and present that on or about tire 14th day of November, 1950, in the County of Johnson and State of Kansas and within the jurisdiction of the Court, R. R. Osborne, then and there being, did unlawfully, feloniously, willfully, and corruptly testify to a material matter upon oath legally administered in a trial or proceeding before the District Court of Johnson County, Kansas, entitled State of Kansas, Plaintiff, v. W. C. Jones, Defendant, being Docket No. 3211 in the Criminal Docket in said court by then and there testifying that the said W. C. Jones was not under the influence of intoxicating liquor on January 20, 1950, at approximately 4:10 A. M. of said date and at a location in said county and state near the intersection of Highway 50 and West Lenexa Road, when in truth and fact the said W. C. Jones was at said time and place under the influence of intoxicating liquor and the said R. R. Osborne knew at the time of testifying that in truth and fact the said W. C. Jones was at the aforesaid time and place under the influence of intoxicating liquor, the said R. R. Osborne having testified under oath in the preliminary hearing in said matter that the said W. C. Jones was at said time and place as aforesaid under the influence of intoxicating liquor, the said testimony of said R. R. Osborne in the trial of said cause being upon a material matter in that the issue of whether the said W. C. Jones was at said time and place and prior thereto under the influence of intoxicating liquor was an element of the offense with which the said W. C. Jones was charged and tried upon in said cause and the said R. R. Osborne did as aforesaid unlawfully and feloniously commit perjury contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Kansas.”
The defendant moved to quash this indictment on some eight grounds. The trial court sustained the motion on the ground the offense attempted to be charged was so vague, indefinite, equivocal and uncertain that the court could not pronounce judgment upon conviction, according to the right of the case; that the facts stated in the indictment did not state a public offense and set forth improper conclusions and that the indictment failed to state a public offense and omitted some necessary and required averments of the statute in order to charge the defendant with the charge of perjury or any other public offense. The state has appealed from that order.
Defendant quotes the statute defining perjury. It is G. S. 1949, 21-701 and provides as follows:
“Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury.”
G. S. 1949, 21-706, providing what facts must be stated in an indictment for perjury provides:
“In any indictment for perjury it shall be sufficient to set forth the substance of the offense charged and by what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same), together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of the record, proceeding or process, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.”
The defendant points out that perjury is the only crime where there is one statute, defining the offense, and another providing what shall be set forth in the indictment. He points out the form of the statute, in that it first states what allegations will be sufficient, such as (1) the substance of the offense charged; (2) by what court or before whom the oath was taken; (3) that such court or person had proper authority; (4) the proper averments to falsify the matter wherein the perjury was assigned; that it then provides it is not necessary to allege (1) any part of the record, proceeding or process; or (2) any commission or authority of the court or person before whom the oath was taken or (3) the form of the oath or (4) the manner of administering it. He argues that the inclusion of the matters that need not be alleged as well as those that must be indicated an intention on the part of the legislature that the provisions of the statute, stating what must be alleged, should be followed with meticulous care.
Defendant convinced the lower court, and argues here, that the indictment already quoted in this opinion failed to state that the court or person administering the oath had competent authority to administer it and that there is no allegation setting out by what court or before whom the defendant took the oath.
The indictment stated that the oath was legally administered in a trial before the district court of Johnson county. The argument of defendant is that such an allegation may not be construed to mean that the district court of Johnson county had authority in a trial pending before it to administer an oath. Such an argument overlooks the fact that the courts might take judicial notice of its own existence. To be legally administered the oath must have been administered by a court or officer that had authority to administer it. G. S. 1949, 54-101, provides what officers are authorized to administer oaths. Among them are judges of courts in their respective jurisdictions and clerks of courts of record. This indictment states the oath was legally administered in a trial before the district court of Johnson county. Pursuant to G. S. 1949, 54-101, this oath could have been legally administered by either the judge of that court or the clerk of that court. Either one of these officers had authority to administer the oath and when the indictment stated it was legally administered it stated in effect it was administered by an officer who had authority to administer it. See, also, G. S. 1949, 19-1305 to the effect that clerks of district courts have authority to administer oaths where such are required.
This holding is fortified by several sections of our code of criminal procedure. G. S. 1949, 62-1012, provides neither presumption of law nor matters of which judicial notice is taken need be stated in an indictment or information. Surely the judge of the district court of Johnson county could take judicial notice of the fact that he or his clerk had authority to administer an oath in a trial being conducted before that court. This indictment met all the tests provided by G. S. 1949, 62-1010, that is, it stated the indictment was found by the grand jury of the county where the court was held, the defendant was named, it stated the offense was committed within the jurisdiction of the court, the offense of perjury was clearly set forth in plain and concise language, and the offense was stated with such a degree of certainty that the court may pronounce judgment upon conviction according to the rights of the case.
G. S. 1949, 62-1011, provides certain defects for which an indictment or information may not be set aside. The section names mistake in the name of the court, want of an allegation of time when the venue and time had once been stated, representing dates and numbers by figures, omissions of the words “with force and arms,” “contrary to the form of the statute” or “against the peace and dignity of the State of Kansas,” an omission to state that the grand jurors were impaneled, sworn or charged, the omission of any surplusage or redundant matter when there is sufficient matter alleged to indicate the crime and person charged nor “Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” This section speaks of “defects” in an indictment. Granting for the sake of argument that the failure of this indictment to state in so many words that the court or person administering the oath was qualified to administer it, was a defect, still we fail to see how this omission would tend to the prejudice of the defendant in his trial on the merits. He was advised by the indictment that he was charged with having testified in a trial in district court of a case, naming it, to a fact, describing it, when he knew the facts to which he testified were otherwise, describing them. He will not be prejudiced in his defense by such an omission. (See State v. Kemp, 137 Kan. 290, 20 P. 2d 499.) In that case the information did not specifically state that the defendant swore falsely. We held the defect harmless and said:
“The essence of the crime of perjury is that the person charged swore falsely, and it is passing strange that a prosecuting officer, with the statute before him, should omit direct allegation of falsity from the information. However, the information charged that Kemp did unlawfully, willfully, feloniously and corruptly swear on oath, legally administered, the statements, facts and denials contained in the answer were true well knowing they were false and untrue and that Kemp made the allegations under oath with intent to deceive and mislead. In this instance, the criminal code itself has forbidden resort to the technicalities of common law pleading in perjury cases.
“It is not open to dispute that Kemp- knew he was charged with perjury in a matter clearly pleaded; that the trial court could pronounce judgment according to the right of the case; and that the imperfection in the information did not tend to prejudice Kemp’s substantial rights. The same provisions of the criminal code nullify the common-law rule that besides showing falsity of what was sworn to, the pleading should go on and tell antithetically what the truth was. The whole purpose of the section of the bill of rights which requires that the defendant shall be allowed to demand the nature and cause of the accusation against him (§ 10) is subserved when the information discloses that he swore falsely.”
(See State v. Whitlock, 138 Kan. 602, 27 P. 2d 262.)
The judgment of the trial court is reversed with directions to proceed with the trial of the action. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This action involves a claim against a decedent’s estate. The appeal is from the judgment of the district court, which on appeal from the probate court heard and denied the claim.
The record discloses that Louise Towne, an elderly spinster, who owned her home in Lawrence, where she resided, died testate September. 15, 1949. Her will was duly probated and the executor named therein was appointed. The inventory of her estate listed property appraised at $13,521.05, which included her home, appraised at $5,000 and the contents thereof at $418.46.
On June 16, 1950, Mrs. J. F. Holloway, appellant here, filed her petition in the action in the probate court to recover a judgment against the estate in which her address where she was then living in Virginia was given and in which it was alleged that she was an employee of the deceased under an oral contract made between them in the spring of 1942, whereby deceased promised and agreed to execute a will by which she would bequeath and devise the home of the deceased, the location and description of which were given, and all the household goods, furniture and fixtures therein to the claimant in consideration of her promise and agreement to care for the person of the deceased at her home; that in reliance upon the promise and agreement of the deceased the petitioner commenced working for her and performing numerous household duties, which were enumerated, and continued to do so until June 8, 1946, at which time the petitioner was moving from Lawrence to the state of Virginia; that on June 8, 1946, petitioner asked deceased in the presence of witnesses if she cared to make a settlement for services rendered to that date, and deceased again promised to make and execute a will in which she would give petitioner her home and all of the household goods, furniture and fixtures therein, which devise and bequest would be in full payment for services rendered to that date by petitioner to deceased; that petitioner had fully performed all services and duties incumbent upon her in the oral contract but that the deceased failed to perform her promises under the contract. The prayer was “for judgment for the specific performance of said contract and that said real estate be set apart and aside to petitioner, along with all household goods, furniture and fixtures therein, for other equitable relief and costs.”
Decedent’s will made fourteen specific bequests in sums aggregating about $2,200 and gave the residue of her estate to the board of trustees of the First baptist Church of Lawrence, of which church she had been a member for many years. The will also named several persons to whom none of her property should be given, or to whom something should be given upon a certain condition. One paragraph contained the sentence:
“And I hereby cancel any and all promises I may have made to any person or persons that I would bequeath to them any property, real or personal, of which I may be possessed at the time of my death.”
The name of the appellant here was not mentioned in the will. The executor and the trustees of the First Raptist Church filed written objections to the allowance of the claim, each of which contained a general denial of the allegations of plaintiff’s petition. The action was heard in probate court, at which time the claimant produced her evidence and the testimony was taken and later transcribed by a court reporter. At the close of the evidence the demurrers thereto filed by the executor and on behalf of the church were sustained and the claimant appealed to the district court. In the district court the church trustees filed amended written objections to the claim in which they pleaded the statute of frauds.
In the district court the parties stipulated that the case should be submitted to the court for trial upon the testimony given in the probate court, as shown by tire transcript thereof, and that in the event the district court overruled the demurrers by the executor and by the trustees then the case should be set down for further trial. After a hearing upon the transcript of the testimony the trial court overruled the demurrers of the executor and trustees and in harmony with the stipulation set the hearing for a future date. At this hearing neither party presented additional evidence. The court, having considered the evidence as shown by the transcript of the testimony in the probate court and the arguments of counsel, ruled as follows:
“Whereupon the court finds that the claimant, Mrs. J. F. Holloway has failed to prove her claim. The court therefore finds that no contract or agreement was made and entered into between the claimant and Louise Towne as alleged in claimant’s petition or otherwise, whereby Louise Towne promised and agreed to execute a will and by said will bequeath and devise her home at 1147 Ohio Street, together with household goods, furniture and fixtures to claimant, the real property involved being described as follows: (describing the property).
“The court further finds that there is no clear or convincing proof of any appreciable amount of work having been done by claimant for the deceased, Louise Towne, as alleged in claimant’s petition.”
In this court counsel for appellant point out that after the demurrer was overruled and the case was set for hearing the executor and trustees offered no evidence. They contend that having overruled the demurrer the court should have rendered judgment for claimant. The point is not well taken. In ruling on the demurrer the court does not weigh the evidence but considers all of it in the light most favorable to the party who had offered the evidence. More than that, it is not unusual for a trial court to prefer to make its ruling after all the evidence is in. They also point out that under our statute the ruling on a demurrer, if sustained or denied, is an appealable order. They contend, therefore, that the ruling on the demurrer became res judicata. It could only be res judicata as to matters passed upon by the court, and the only thing the court passed upon was that there was some evidence tending to favor claimant’s petition. The ruling on the demurrer, even though unappealed from, did not prevent the court from weighing the evidence on the trial of the case upon its merits and from rendering such judgment as the court thought proper.
Appellant further presents for our consideration two questions: (1) Whether the judgment of the trial court in disallowing the claim for specific performance is contrary to the evidence, and (2) whether it is contrary to the law. With respect to the evidence, we note, as the trial court did, that there is no evidence that the contract pleaded was made. Indeed, the contract pleaded is that Miss Towne agreed to execute the will giving claimant her home and household goods in consideration of the claimant’s “promise and agreement to care for the person of said deceased and her home.” It will be noted for what time this care was to exist is not stated — whether for a few weeks or months only, or whether the care was to continue for the life of the promisor. But the evidence is wholly silent as to whether the contract pleaded, or any specific contract, was made in the spring of 1942, when claimant says she began working for Miss Towne. Indeed, it is difficult to understand from the evidence what the claimant really understood the contract to be, for in 1946 when she planned to move from Lawrence to Virginia she asked Miss Towne about paying her for the work she had done. This tends to indicate claimant thought Miss Towne owed her money for her services up to that time. There is testimony as of that time by claimants daughter, by a woman who had lived in her home and by a neighbor who had lived next door two or three years before, tending to show that Miss Towne planned at that time, and perhaps had previously planned, to make a will in which she would leave her home and its contents to the claimant. Really, that is about all there is. Had she done so she could have changed her will. There is also a very light showing of what the claimant did for Miss Towne. She testified she did not do the cooking or wash the dishes; that she worked in the yard — the extent of that is not shown; that she washed windows, went to the grocery store and perhaps the drug store on errands, and did some other work of that character.
With respect to the law of the case the following authorities are applicable:
In 58 C. J. 1198, dealing with specific performance of oral contracts for the conveyance or to devise real estate, it is said:
“The rule requiring plaintiff to establish, by clear and convincing evidence, the existence and terms of the contract sought to be enforced, and the other essential facts necessary to a recovery, is especially applicable where it is sought to enforce a parol contract for the conveyance, lease, or exchange of land, and the rule is applied with even stronger reason where the contract was made with a person since deceased, . . .”
And on page 1203 it is said:
“The rules as to the weight of evidence are applied with the utmost strictness to oral contracts, one party to which has since died. So the law does not look with favor on contracts to will or lease to another on the promisor’s death the whole or a part of the latter’s estate. Courts of equity will subject the evidence of such a contract to close scrutiny, and it must be established by the clearest and most convincing proof, a mere preponderance of the evidence being insufficient. . . .”
Citing, among many other cases, Fair v. Nelson, 96 Kan. 13, 149 Pac. 432; James v. Lane, 103 Kan. 540, 175 Pac. 387; and Bowen v. Galloway, 125 Kan. 568, 264 Pac. 1038.
See, also, to the same effect, 32 C. J. S., “Evidence,” § 1023; 20 Am. Jur., “Evidence,” § 1253; 49 Am. Jur., “Specific Performance,” § 169. This rule has been followed repeatedly in this state. In Trackwell v. Walker, 142 Kan. 367, 46 P. 2d 603, it was held:
“In an action to enforce a claim to half of an estate based upon an alleged oral contract between plaintiff and its deceased owner, the record examined and held that the evidence failed to prove the malting of the contract and failed to prove its essential terms, and the demurrer to the evidence was properly sustained.”
And see cases cited at pages 368 and 369.
We find no error in the record. The judgment of the trial court is aifirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This proceeding originated in the probate court upon a petition of the executor named therein to probate the will of John J. Wills, deceased. The testator’s son, Morrison H. Wills, filed written objections thereto. The matter was heard in the probate court and the will was admitted to probate. The contestant appealed to the district court.
On March 27, 1951, when the case came on for trial in the district court an advisory jury was qualified and sworn. The proponent of the will introduced his evidence. No demurrer was filed thereto and the contestor introduced his evidence. The subsequent proceedings are best shown by the journal entry, the pertinent portions of which read:
“Thereupon, and after the conclusion of the introduction of evidence of the contestor, Morrison H. Wills, the Executor, William H. Wills, demurred to the evidence and testimony of the contestor, Morrison H. Wills, for the reason and upon the grounds that said evidence and testimony wholly failed to establish or show that the testator, John J. Wills, was not of sound mind when the will was executed; that said evidence and testimony wholly failed to establish or show any undue influence or fraud alleged to have been exercised upon the testator, John J. Wills, by either William H. Wills or Bessie Mae Wills McIntosh or by anyone on their behalf; that said evidence and testimony wholly fails to establish or show the invalidity of said Last Will and Testament of John J. Wills, deceased; that said evidence and testimony wholly fails to overcome th,e presumption arising as to the validity of said will after prima facie showing that the instrument was duly signed and attested by the testator, John J. Wills, in the presence of witnesses and as to the prima facie showing as to the validity of said Last Will and Testament of John J. Wills, deceased.
“After hearing arguments of attorneys for both sides and after fully considering the evidence and testimony offered on behalf of the contestor, Morrison H. Wills, the Court finds that the evidence and testimony of the contestor wholly fails to overcome the prima facie case and proof made by the Executor in support of said Last Will and Testament of John J. Wills and wholly fails to establish or show testamentary incapacity of John J. Wills at the time of the execution of said Last Will and Testament, and wholly fails to establish or show any undue influence alleged to have been exercised upon John J. Wills in the execution of said Will, and wholly fails to establish or show any defense against the admission to probate of said Will of John J. Wills, deceased, and therefore the demurrer of the executor, William H. Wills is sustained. Thereupon the Court dismissed the jury from said case.
“Having further considered all the evidence introduced in said case and being further well advised and informed in the premises, the Court finds that the testator, John J. Wills, was, at the time of the execution of his Last Will and Testament which was attached to the petition of William H. Wills and marked ‘Exhibit A,’ of full age, of sound and disposing mind and memory, then fully knowing and comprehending that he was executing his Last Will and Testament; that he knew the contents thereof; that he then knew the extent and nature of his' property, the natural objects of his bounty, and the disposition of his property that he desired to make and did make.
“The Court finds that the instrument attached to the petition of William H. Wills, marked ‘Exhibit A,’ purporting to be the Last Will and Testament of John J. Wills, deceased, and attested by Homer Sharpe and W. W. Chandler as witnesses, is the true, valid and lawful Last Will and Testament of John J. Wills, a resident of Rice County, Kansas, who died at Lyons, Kansas, on November 27, 1950.
“The court finds that said Last Will and Testament of John J. Wills, deceased, has been duly attested and fully executed in all respects as provided and required by law and that said Will should be duly admitted to probate in the Probate Court of Rice County, Kansas as the true, valid and lawful Last Will and Testament of John J. Wills', deceased.
“It is therefore considered, ordered, adjudged and decreed by this Court that the demurrer of the Executor to the evidence and testimony of the contestor, be and the same is hereby sustained, upon the grounds herein set forth. It is the judgment, order and decree of this court that the instrument attached to the petition for probate, marked ‘Exhibit A/ dated April 18, 1949, purporting to be the Last Will and Testament of John J. Wills, deceased, and attested by Homer Sharpe and W. W. Chandler as witnesses, is the true, valid and lawful Last Will and Testament of John J. Wills, deceased, and that the Probate Court of Rice County, Kansas, shall admit to probate and record said Last Will and Testament as' and for the Last Will and Testament of John J. Wills, deceased. It is the further order of this Court that the contestor, Morrison H. Wills, together with the sureties upon his appeal bond shall pay the costs of this action.”
In due time the contestor filed a motion for a new trial, which was heard on April 30, 1951, and overruled. The contestor appealed to this court and has presented the following specification of error:
“That the District Court of Rice County, Kansas, erred in sustaining the executor’s, appellee’s, demurrer to the appellant contestant’s evidence in trial in the District Court of Rice County, Kansas. That the District Court of Rice County, Kansas, erroneously overruled the appellant contestant’s motion for new trial.”
The record discloses that on November 27, 1950, John J. Wills, about seventy-five years of age, a resident of Rice county, died leaving a will executed April 28, 1949, by which he devised two described quarter sections of land to his brother, William H. Wills, and one described quarter section of land to his niece, Bessie Mae Wills McIntosh, and named them as residuary beneficiaries of the remainder of his estate and appointed them to be named executors of his will. The will contained a paragraph which reads:
“Having heretofore made advancements to Morrison H. Wills, which I deem to be sufficient provision for him, I make no provision for him in this will.”
At the time the petition to probate the will was filed Morrison H. Wills was a resident of Kansas City, Missouri. His written objections to the probate of the instrument offered as the will of John J. Wills were as follows:
“1. Said instrument was not executed by the decedent in the presence of each of the subscribing witnesses.
“2. Said instrument was not executed by the subscribing witnesses in the presence of each other or in the presence of the decedent.
“3. Said instrument was not acknowledged by the decedent as his last will to each of the subscribing witnesses.
“4. Said instrument was not declared to the subscribing witnesses to be the last will of the decedent.
“5. The subscribing witnesses did not subscribe to said instrument at the request of the decedent.
“6. At the time of the alleged execution of said instrument, the decedent was not of sound mind and memory, and was mentally incompetent to make a will.
“7. The said instrument was obtained by the exercise of undue influence on the decedent, and the exercise of fraud and misrepresentation on the decedent by William H. Wills and by Bessie Mae Wills McIntosh, which undue influence was exercised and which fraud and misrepresentation was employed by said persons for a period of many months prior to the alleged execution of said instrument and up to the time of such execution, but this respondent is without knowledge of the exact times and places of such actions. Such undue influence and such fraud and misrepresentation consisted of statements to decedent concerning this respondent, who was the son and only heir at law of decedent, calculated to cause and in fact causing unwarranted prejudice and unnatural dislike and hatred of respondent by decedent, all of which was done for the purpose of influencing and causing decedent to dispose of his property away from respondent and to said William H. Wills and Bessie Mae Wills McIntosh.
“Respondent further alleges that at the time of the making and preparation of said instrument William H. Wills and Bessie Mae Wills McIntosh, the principal beneficiaries under said instrument, occupied positions of trust and confidence to the decedent, that said principal beneficiaries prepared or caused to be prepared the said instrument, and that the decedent did not know the contents thereof and did not have independent advice with respect thereto.”
In this court counsel for the contestor argued the case as though the trial court had ruled only on the proponent’s demurrer to the contestor’s evidence. We think that is too narrow an interpretation of the court’s decree. As we view it, while it is true the court announced that it was sustaining the demurrer to the contestor’s evidence, it is clear from the decree that the court went on and considered and weighed all of the evidence in reaching its conclusion.
An examination of the record discloses that the contestor presented no evidence in support of the first five paragraphs of his objections to the probate of the will. On the other hand proponent, in addition to the declarations of the subscribing witnesses to the will, called the witnesses, each of whom testified that he was an officer of the Chandler National Bank at Lyons, with which bank the testator had transacted business for many years, and on April 18, 1949, the testator came to the bank with an instrument which he said was his will and told them that he would like to have them sign it as witnesses; that they went in the back room of the bank, where only the three of them were; that John J. Wills said the instrument was his will and that he signed it in their presence and asked them to sign it as witnesses, and they did so, and that he took it with him. The record also fails to disclose any evidence on behalf of the contestor in support of the seventh paragraph or of the unnumbered paragraph following in his objections to the probate of the will. The objector called as a witness William H. Wills, named as executor in the will, who testified among other things that the first time he saw the will of John J. Wills was when it was opened in the probate court’s office the next day after John’s funeral; that he got the will out of the box at the bank the next day after the funeral; that Homer Sharpe was with him; that he had never been to the box before; that he did not see the will drawn; that he did not see it or have anything to do with it prior to the time it was opened in the probate court; that when he received it from the bank it was in an envelope which had written on it, “Last Will and Testament of John J. Wills,” and the date and a statement that in the event of his death to notify his brother, William H. Wills.
With respect to the sixth paragraph of the written objections to the probate of the will to the effect that at the time the will was executed the testator was not of sound mind and memory and was mentally incompetent to make a will, the following evidence was introduced by the proponent. The subscribing witnesses testified in substance as follows. W. W. Chandler testified:
“I am a resident of Rice County, Kansas, and I have lived here seventeen years. I am the head of The Chandler National Bank here in Lyons. I have known John J. Wills since I came here in 1934, until his death. I did business with him and he did business with us and I have seen him frequently.”
He testified about the execution of the will, as previously noted, and continued:
“From my observation and knowledge of John J. Wills, I am of the opinion he was of sound mind and memory. He did not appear to be different mentally from any previous occasion. I have no doubt of his mentality at the time of the execution of the will.
“At the time he signed the will he knew the nature of the act and realized what he was doing. He knew who his folks were and I considered him mentally sound and sufficient to do normal business transactions.”
Mr. Homer Sharpe testified:
“I have lived in Lyons twenty-two years and have lived in Rice County all my life. I was county treasurer four years, city clerk two years, was mayor of the city of Lyons and am vice-president and cashier of the Chandler National Bank, Lyons. I knew John J. Wills about twenty years and had business transactions with him during that time. I had occasion to observe him physically and mentally. . . . From my observation of John J. Wills during the time I had known him and considering his business transactions, at the time John J. Wills affixed his signature to that instrument he was of sound mind and memory. He certainly knew what property he possessed and who his relatives were. Based upon my previous experience there is no question in my mind that John J. Wills had normal business ability.”
William H. Wills, in addition to the testimony previously mentioned, testified:
“After his stroke in the spring of 1947, John J. Wills still took care of his business. During the month of April, 1949, and previous thereto and subsequent thereto, I observed him and it is my opinion he was capable of taking care of his own business. He did take care of his own business. I do not know of anyone who aided him. I did not notice any change in his mental condition after he came back from the hospital in July, 1948.”
Mrs. Zoé Osen, called as a witness by the contestor, gave her address in Lyons and stated that she is the widow of a minister; that John J. Wills had a room at her house and was rooming there when she acquired the property about seven and one-half years before his death; that he became ill at her house in 1947 and asked her to call a doctor, which she did; that he said he felt dizzy; that while he lived at her house he read the Hutchinson paper and took the United States News; that she took the Newsweek magazine and once in a while he would ask her if she had noticed a certain article. They exchanged magazines. During his last illness she visited him at the hospital. He asked her to get his laundry and told her where it was. She visited with him the day of his death. He talked about a man who had stayed at her house with whom he had visited frequently and asked if he had come back. He asked if an insurance adjuster had come to adjust a small fire. He said he wanted to pay his room rent and asked her to hand him his trousers. She told him his room rent was not due, but he said he wanted to pay it anyway. He took the money from his trousers and paid her the right amount.
“During the seven and a half years he lived at my house, including the period up to the time of his death, from my association with and my knowledge of him as far as I was able to tell he was of sound mind at all times.”
He gave her a writing to the effect that if he should become incapacitated from any cause so as to be unable to attend to his business affairs no one should be authorized to take his belongings from his room except his brother, William H. Wills, to whom the writing was to be given.
This testimony would have justified, perhaps required, the court to find that there was no merit in the sixth paragraph of the contestor’s objections to the probate of the will. But at sometime the contestor or his counsel conceived the view that the testator had an insane delusion to the effect that he was not the father of Morrison H. Wills. This had not been specifically mentioned in the written objections to the will, but perhaps might be included in the sixth paragraph thereof, and obviously the parties and the court so regarded it. The record as pertaining to that question may be summarized as follows: According to the testimony of William H. Wills the testator was born July 28, 1874, and was seventy-six years and four months of age at the time of his death. Obviously, he had been a resident of Lyon county for many years, perhaps all his life. On April 5, 1905, he was married to Bessie Hodgson. They lived together as husband and wife until 1932, when they were divorced on petition of the wife. Two children were born as a result of the marriage — a daughter, who died sometime while they were living-together, the specific date not being shown — and a son, Morrison H. Wills. When he was prepared for college his father furnished the money for him to go to Kansas University and among other things provided him with an automobile. On March 21, 1931, while two young men were riding with him, he had an accident with the automobile which resulted in the death of one of the young men and the serious injury of the other; and also the testator’s son, Morrison, was so seriously injured that he was confined to the hospital for fourteen weeks and left there with a cast on his back. When he left the hospital he returned home, but the relations between him and his father were strained and they had difficulties. The extent'of that is not shown. Morrison testified:
“I believe that the wreck or the transaction that caused the death of one boy and my injury had something to do with my father’s attitude.”
The son did not return to school but stayed about home for a time and went to work in Lyons for an oil company. About that time — the specific date not being shown — the wife sued her husband for a divorce, and when she filed her petition she obtained an order enjoining the husband from returning to the home. The divorce was actually granted in September, 1932. Bessie Wills, called as a witness, testified that beginning soon after the children were born the husband sometimes referred to them as her children. Apparently this was not done in a way to be offensive to her, for she further testified that her husband did not show any adverse attitude toward Morrison until 1931-1932. About that time, referring to the son, he said: “He isn’t my son, he is your damned offspring.” Possibly the husband’s attitude is best disclosed by two letters he wrote to his wife after the divorce. One was dated December 29, 1932, and the other July 28, 1936. These were introduced in evidence as a part of the testimony of Bessie Wills. Omitting the address and signature, the first one reads:
“I am still of the opinion that you owe me the difference between the $100 allowed for the taxes on the Welsh farm and the $66.99 tax which leaves $33.01 due me. You never had a dime when we was married. You had less than $100.00 worth of stuff to help start housekeeping with, you have never had an income or received anything since except what you received from me. I gave you a better home and easier life than any of your folks that I know of have had, you broke your marriage vows and every good promise you ever made to me. I owned one of the pretty homes of the community, 240 acres, was out of debt, I was out of debt and worth between $12,000.00 and $13,000.00. My mother gave me a % section which has paid large returns. In your disgraceful divorce action you forced me to give up, (or go into a dirty and expensive lawsuit) $27,560.72 in this is my home I had built the comforts I had gathered about me the presents my folies gave me. Your son cost me about $5,000.00 the three years he spent in K. U. and a cast with a broken back. Your son caused me a lot of grief, worry, humiliation and shame. You and your son set me out looking for a place to sleep, you failed to rob me of my lot in the cemetery, in your divorce petition you swore you can no longer live with me. I think that you and your offspring do not choose to be buried with me. I suggest that you buy my lot, and pay the $33.01 over allowance on the Welsh farm taxes for the year 1932.”
The later one reads:
“You aided by your relation and friends robbed me of my life savings, and put me out of my own home, a home that you did not have a dollar invested in. You did not acquire title to my lot in the cemetery just north of Lyons, Kansas. I am paying to have that lot kept clean and tidy and somebody persists to clutter and litter this lot on Memorial Day, contrary to my custom and wishes. Since under your management all of the living mem bers of your own family except yourself are out of the home that I provided for them, it appears hardly likely that you would display such devoted benevolence upon the grave of the remains of one who died over twenty years ago.
“Your son Morrison Hodgson Wills caused me an enormous unnecessary amount of expense and grief, and after that he actively helped you rob me, and then he violated my orders and took my new typewriter against my wishes, and then refused to return it to me, and denied any knowledge of where it was at, thus I could not find or replevy my typewriter. I do not understand why he would come back here and clutter my lot.
“It may be some of your helpful Christian relation or friends who clutter up my lot. I want the practice stopped. You may know the guilty person, if so you may hand them this notice.”
There was testimony that in 1947 the testator was not feeling well and asked Mrs. Osen to call a doctor. She called Dr. R. Leonard, who testified that he was called to testator’s rooming house. When the doctor talked with him at the house he complained of being very dizzy, some headache and some nausea of the stomach and being very nervous. The doctor took him to the hospital, where he remained about a week. His predominating symptom was dizzy spells. The doctor testified:
“After we got him to the hospital, and my examination of him at that time was I couldn’t conclude anything particularly about what was the actual trouble with him. I suspected he might be a little bilious; however, at his particular age, I carried in mind he might have had a slight cerebral hemorrhage, that is, or a blood clot in his brain, where something has happened in his brain.”
Later the doctor saw him several times on the street and noticed he had a little trouble getting around. “He was slow and cautious like.” Usually he had a cane, although the doctor did not notice much about that. His observations caused him to conclude, however, that he had had some sort of a cerebral accident. The doctor was a first cousin of the testator, who was much older, and the doctor had not known him before he began to practice medicine. He was asked if he had ever talked with the testator about his son. He spoke of one time at the bus station in 1944 or 1945. He asked the testator about Morrison, and he didn’t know where he was. The doctor pressed the matter somewhat. He did not like it at all that the doctor had mentioned it, brought up the matter of the divorce and the boy going with his mother. When the doctor attempted to pursue the subject he walked away. The doctor testified:
“I never talked with him about Morrison but once and then he certainly did not give me any idea Morrison was not his son.”
Cecil E. Bleger, called as a witness for contestor, testified he operated a tire business; that the testator was around his place often and carried a key; that he was on very friendly terms with him since 1926. The testator talked with him quite a little about the divorce proceedings and referred to Morrison H. Wills as a bastard; that it was a constant thing in his mind about what happened to him at the time of the divorce, and that his wife and son had run him off the place; that his stroke in 1947 affected his left side — the leg more than anything else — and he did not have too much control over it, and that he had pains in the back of his neck; that he went to the Ellsworth Hospital for a checkup and that the witness took him to Bell Memorial Hospital in Kansas City in July, 1948. At that time, and before, he had been worrying a little about his mental condition and seemed to have a fear that he might be sent to the Larned Hospital. The witness knew of several occasions when William H. Wills was at the testator’s rooming house both before and after the will was executed, and that afterwards the testator would be upset and talked about “the outfit” and what they had done to him in the divorce action.
Mrs. Osen had testified that he went to the Bell Memorial Hospital. Before that he had gone several places, but when he came back from the hospital he did not say anything about going anywhere else.
At the time of deciding the case the court made an oral statement in which it said:
. . and the court is saying that that will is a good and valid will, that at the time of the making of the will, Mr. Wills was capable. I am not saying that it is a fair will, I am not saying it is a proper kind of will, I am not saying it is a kind will, but I am saying it is Mr. Wills’ will.”
Following the court’s decision the contestor filed a motion for a new trial upon the grounds of abuse of discretion by the court, the contestor was not afforded a reasonable opportunity to present his evidence to be heard on the merits, erroneous rulings of the court, the decision of the court was given under the influence of passion and prejudice, and the decision of the court was in whole or in part contrary to the evidence. This motion came on for hearing before the court on April 30, 1951. Although no notice had been given that testimony would be presented the contestor called as a witness Bessie Wills Good (she had remarried since the trial). It developed the testimony sought from her had been given at the time either by herself or by the contestor. In colloquy between the court and counsel for contestor the court made the following statement:
“The court was under the impression all through this trial, and is under that impression now, that there wasn’t any question of infidelity on the part of this mother; that that never entered into it, or never came into it, and wasn’t even considered by the court. That is, the court at all times considered this was his son as well as her son; that he was a legitimate child, and that there wasn’t any doubt about it.”
The contestor called Cecil E. Rieger as a witness and reminded him of his testimony that he had been a close friend to the testator and asked if there came a time when that relation ceased. He replied in the affirmative and fixed the time as of about June 3, 1946. His further testimony developed that this came about because of a homicide in the neighborhood. Upon objection to that line of testimony the court inquired of counsel for the contestor what bearing it had upon the case. Counsel made a lengthy statement to the effect that this was preliminary to additional testimony which they planned to introduce which would show that the testator ceased his friendly relations with the witness and began relying upon his brother, William H. Wills, and to follow that with testimony tending to disclose that William H. Wills had the confidence of the testator before and after the will was executed and had prompted its execution. With that statement the court overruled all objections of the proponents of the will and permitted the contestor to go into that matter fully. In the course of that hearing a Mr. A. E. Crawford, county coroner, and Herman Knitter, sheriff of the county at that time, were called and gave testimony. Without going through this testimony in detail it is sufficient to say that after an investigation of all of the facts in connection with the death in question the officers had concluded it was a suicide. There was no prosecution of anyone; indeed, there was no inquest. The testimony went nowhere so far as attempting to establish the things the contestor’s counsel stated he hoped to develop. The court overruled the motion for a new trial and in doing so took up the grounds of the motion seriatim and pointed out that nothing had been presented to the court with relation to it, or that there had been no contention that had substantial merit.
In this court counsel for appellant devote their brief to the subject of insane delusions. From the annotation upon Testamentary Capacity, Delusions, in 175 A. L. R. 882 to 975, they picked out excerpts from the opinions in cases in which wills have been set aside on the finding of an insane delusion of the testator. In the same annotations they could have found as many or more with a contrary result. A somewhat similar compilation of cases is found in 21 Words and Phrases, permanent edition, pages 573 to 585. Our own cases of Akins v. Akins, 109 Kan. 453, 199 Pac. 922; In re Estate of Millar, 167 Kan. 455, 207 P. 2d 483, and In re Estate of Walter, 167 Kan. 627, 207 P. 2d 262, with the authorities cited there, cover the general principles pretty well. Here, however, we find no occasion to attempt to write extensively upon the doctrine. It seems clear that the trial court was not impressed with the slight evidence shown by this record that the testator had an insane delusion with respect to the parentage of his son. A judgment finding an insane delusion in this case would necessarily have been based upon one statement testified to by the divorced wife and upon the testimony of the witness, Cecil E. Bleger. The first was a statement in a more offensive form than he had made since the child was born. There is no real reason to say that any of them intended to infer lack of parenthood on the part of the testator. There is quite a little in the testimony of Mr. Bleger which would cause any court to consider it with care. Obviously, he was a very willing witness. The word the witness testified the testator used with reference to the contestar, if used, did not necessarily imply that he was not the father of the contestar. One of its definitions is, lacking in genuineness; of a kind similar to but of inferior quality. It is' sometimes used simply as an insulting remark. (Hayman v. State, 47 Tex. Crim. Rep. 263, 83 S. W. 204, 205.) It seems clear that the court never construed these two accusations as establishing the fact that the contestar was illegitimate. Unquestionably the testator felt deeply aggrieved that his son, in whom he obviously had taken great pride, had so used the automobile which he had furnished him that one young man was killed and two others seriously injured, and that the son had assisted his wife in her divorce suit in which he had lost his home, of which he was proud, and substantially more. We are not retrying that divorce case, which apparently was not contested, for perhaps something could be said on the other side. We are not saying he was justified in being aggrieved. But that he was deeply aggrieved by those circumstances is clear from the two letters he wrote his wife afterwards, as well as from other evidence, and finally in the will he stated his own reason for making no further provision for his son. That reason was not that his son was an illegitimate child. The trial court heard the evidence and concluded that the will was duly executed and that it was valid in every respect. There was ample evidence to sustain the judgment of the trial court. There was no error in overruling the motion for a new trial.
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The opinion of the court was delivered by
Parker, J.:
This is an action on a promissory note given to plaintiff by defendant for the premium on a hail insurance policy. The appeal is from an order sustaining defendant’s motion to strike the plaintiff’s second amended petition from the files.
The facts essential to disposition of the appellate issues involved are not in dispute and can be stated briefly.
Following a motion to make its petition more definite and certain plaintiff filed an amended petition. By reference a true copy of the note sued on was made a part thereof. Such pleading also alleged in substance that when received by plaintiff the note called for the payment of $330.25, which was more than the amount of the premium, and that thereafter it placed a credit of $19 on that instrument, thus reflecting the true amount due. Defendant then demurred to the amended petition on the ground it failed to state a cause of action. Thereafter, the trial court sustained this demurrer on the basis the pleading so challenged disclosed a material alteration of the note sued on, within the meaning of G. S. 1935, 52-906 and 52-907, providing a negotiable instrument is avoided when materially altered without the assent of all the parties thereto, and therefore failed to state a cause of action. Plaintiff took no appeal from this ruling. Instead it filed a second amended petition which, it may be said, contained allegations substantially the same as those set forth in the pleading to which the trial court had theretofore sustained the demurrer. The defendant then moved to strike this pleading from the files for the reason it was repetitious of the amended petition to which the demurrer had previously been sustained. Subsequently the trial court found such pleading was repetitious as charged in the motion to strike and struck the second amended petition from the files. Thereupon plaintiff perfected the instant appeal wherein it now asks this court to hold that the trial court erred in sustaining the defendant’s motion to strike the second amended petition from the files.
There can be no doubt under our practice, except in cases where the statute of limitations has run in the meantime, a question not here involved, that a plaintiff who has failed to state a cause of action in his petition and has had a demurrer sustained thereto based upon that ground may file an amended petition so long as such pleading contains additional, substantial, material facts which would affect the result as against a demurrer. However, an entirely different rule prevails where — as here — a demurrer has been sustained to a petition and the plaintiff thereafter and notwithstanding the former ruling files an amended petition with allegations so similar they substantially repeat what is to be found in the earlier pleading and require the court to either again review and pass upon what it has already determined or ignore its previous ruling. In that situation the established rule is that courts in the exercise of their discretionary powers have the right to strike such pleading from the files and that in doing so they act properly and commit no error.
For general statements supporting the foregoing rule see 71 C. J. S., Pleading, §455 (a) (h) and §462 (a), where the following statements appear:
“. . . There is no error, it has been held, in striking an amended petition where the additional matter set up therein does not entitle plaintiff to any relief further than, or different from, that demanded in his original petition.
“An amended pleading or a part thereof which is substantially a repetition of a former pleading may be stricken, from the files where the original has already been held bad on demurrer, or on a former motion to strike or to dismiss, although the court may, in its discretion, allow such amended pleading to remain on the files. The motion to strike will lie even though the former pleading has been withdrawn.
“A pleading which raises no new matter or question not considered and determined under a former motion or writ of error in the case, and is merely repetitious as to such matters, is properly stricken. Thus, where tire issues presented by the allegations of an answer have been previously adjudicated by the ruling of the court on a demurrer to plaintiff’s petition or complaint, the answer may properly be stricken on motion. . . .” (pp. 916, 920, 921 and 959.)
See, also, 41 Am. Jur., Pleading, 533 §356, which states:
“. . . And it is a rule generally followed that a motion to strike out a pleading will be granted if its allegations are, in substance, the same as those of former pleadings to which demurrers have been sustained, . . . But a motion to strike a pleading on the ground that it is identical with one to which a demurrer has been sustained will be overruled if a different cause of action is stated in the amended pleading.”
For a few decisions from other jurisdictions directly in point and to the same effect, see Butler v. Libe, 81 Neb. 740, 116 N. W. 663; Butler v. Libe (Rehearing denied) 81 Neb. 744, 117 N. W. 700; Neal v. Bank of America, 93 C. A. 2d 678, 209 P. 2d 825; Sholes v. Bank, 82 Colo. 432, 261 Pac. 456; Hoyt v. Beach, 104 Iowa 257, 73 N. W. 492; Wing v. Dist. Twp. Red Oak, 82 Iowa, 632, 48 N. W. 977.
That this court is in substantial accord with the rule as heretofore stated is definitely indicated by one of its own decisions, Mydland v. Mydland, 153 Kan. 497, 112 P. 2d 104, where it is said:
“Where an order sustaining a demurrer to an answer has become final, no appeal therefrom having been taken, an amended answer whose averments differ in no substantial particular as against demurrer is subject to a motion to strike.” (Syl. ¶ 1.)
And at pages 499 and 500 of the opinion stated.
“Plainly, the first question which arises is whether the allegations of the amended answer differed materially from those of the original answer, to which the demurrer had been previously sustained. . . .
“. . . We have carefully compared the allegations of fact contained in the original with those in the amended answer and discern no material dif ference in them. The defense pleaded was essentially the same in both answers. No additional, substantial, material facts were alleged in the amended answer which would affect the result as against demurrer. If a demurrer to the original answer was good, a demurrer to the amended answer would have been good. That issue had already been determined when the demurrer to the original answer was sustained. No appeal having been taken from the order sustaining the demurrer, appellant could not again raise the same question by the amended answer, filed after the time for appeal had expired and the term of court in which the order was entered had passed. The motion to strike was a proper one.”
See, also, Dwinnell v. Acacia Mutual Life Ins. Co., 155 Kan. 464, 126 P. 2d 221. At page 470 of the opinion, in disposing of an issue similar to the one here involved, we said:
“One remaining question requires only brief comment. Upon careful comparison of the first amended petition as to which a demurrer had been sustained and the second amended petition, remaining, it is clear that they are not substantially different and that the court was correct in sustaining the motion to strike the latter from the files. The same issue had been presented and determined when the previous demurrer was sustained and from that ruling no appeal had been taken. . . .”
Application of the rule announced in the foregoing decisions and legal treatises makes it crystal clear the trial court did not err in sustaining the motion to strike under the related facts and circumstances. What appellant actually sought to do in the court below by filing the repetitious pleading was to have the trial court reconsider its ruling on the demurrer. That question had already been passed upon, under the foregoing decisions, regardless whether the action respecting it had been correct or not, appellant was not authorized as a matter of right to refile a pleading practically identical with one which had been held insufficient and thereby require appellee to again defend and the trial court to review the appealable order (G. S. 1949, 60-3302, second) theretofore directly involved and determined.
We have held that an order striking an amended petition from the files is a final order and hence appealable (Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413). However, even though it must be conceded this court in. the past has treated some motions to strike as if they were tantamount to a demurrer, it does not follow, as appellant suggests, that all such motions are entitled to be so regarded on appeal. Under the existing facts and circumstances the involved motion is to be considered in its true light, i. e., as a motion to strike a pleading from the files because the allegations thereof are repetitious and the sole question presented for appellate review is whether, under the rule to which we have heretofore referred, the action of the court below in sustaining it is erroneous. In the instant case, it may be added, decision of that issue hinges upon the action of the court in striking the amended petition from the files, not upon its action in sustaining the demurrer to the appellant’s original pleading for there is no appeal from that ruling.
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The opinion of the court was delivered by
Smith, J.:
This was an action for divorce. The appeal is from an order of the trial court entered some years after the divorce was granted, denying defendant’s motion for an order changing the custody of Susan, an eight-year-old daughter of the couple. The plaintiff John and Georgia Mae, defendant, were married in South Carolina on April 19,- 1941. She was seventeen years old at the time. In January, 1942, they moved to Washington, Kan., and began to live on a farm with John’s mother and sister. For some reason things did not go too well for the young couple and she decided to return to South Carolina. John bought her a bus ticket, gave her $10 and put her on the bus. She had been raised in an orphanage so did not have any home to which she could go, but started to live with a friend. Soon after her arrival, she went to work at a cracker factory for $30 a week. She worked there until two days before Susan was born, October 6, 1942. She was in the hospital four days and four days after she was released from the hospital she went to work in the cracker mill from 11 p. m. until 7 a. m., earning $16 a week. To supplement this income she got a job in a dime store from 9 a. m. until 6 p. m. for $8 a week. She .hired a lady to look after Susan and did her own housework. A short time after Susan’s birth John sued Georgia Mae for divorce in the district court of Washington county. A decree was entered on the 6th day of January, 1943. Service was had on Georgia Mae by publication. She did not appear.
The court ordered John to pay her $50 to defray her hospital bill for the baby and $7.50 a month, a month thereafter for the support of Susan. Five dollars of this was to be sent to Georgia Mae in South Carolina and $2.50 was to be retained by the clerk of the court and used for the support of Susan until some future order.
At the oral argument of this appeal we were advised and there does not seem to be any dispute but that John paid the $50 and made a few of the $7.50 monthly payments, but not all of them. She had Susan with her in South Carolina until she was eleven months old.
Georgia Mae’s health became so bad that she was not able to properly take care of Susan, so she requested John to come to South Carolina and get her. In September, 1943, at a time when the baby was not quite a year old John went to South Carolina, was given Susan by Georgia Mae and he brought her back to Washington, where he kept her in his home with his mother and sister until the hearing of this motion.
On May 3,1944, the plaintiff after notice to Georgia Mae secured an order of the trial court awarding him the custody of Susan and setting aside the order for payments. Nothing further was done in the case until Georgia Mae in the spring of 1951 filed this application asking the court to change the custody of Susan from John to her. In this application she referred to the decree of May 3, 1944 and alleged about the marriage, the removal to Kansas; that she returned to South Carolina on October 6, 1942; that she supported her by her sole efforts until September 11, 1943, when she was no longer able to do so and voluntarily requested plaintiff to assume the guardianship and support of Susan temporarily; that John obtained a divorce from her, which decree made no provision for the custody of Susan; that thereafter on May 3, 1944, John obtained a decree awarding the custody of Susan and that she had notice of the hearing but was unable to appear.
She alleged that during all' the time since 1943 she had attempted to keep in touch with Susan; had sent presents and money to her and had written John about her welfare; that on two occasions she had made a trip to Washington for the purpose of visiting Susan; that during such time Susan had been living with John, his mother and sister; that recently Johns sister had married and left the home; that John was working and away from home all day and left the baby with his mother, who was about seventy years old; that she was now married and was in a position to give Susan a good home; that she and her husband were anxious to have the care of Susan in their home; were living on a farm, which would, be a pleasant place for a child to live; that they had no other children and could devote their time to Susan; that she was no longer working and could devote her whole time to her home and to her child and that if Susan was given her that she and her husband would set up a trust fund for her education if the court so ordered; that she was the proper person to have the custody of the child.
She alleged she surrendered the responsibility of the child solely because she was not able to earn a living for herself and child. She prayed that the order made on May 3, 1944, where the custody of Susan was given John, be changed and she be granted her custody and that John be ordered to pay a reasonable sum each month into the district court for the support of Susan; and that she be permitted to take her to her home, which was outside the jurisdiction of the court.
To this motion John answered that he had the sole care of the child since 1943 and had been given the custody on May 3, 1944, and that she would be nine years old on October 6, 1951; that since she was eleven months old he had supported her; that she had been in regular attendance at common school and church school and would attend the fourth grade next year; that he was a fit person to have her custody and continue being her guardian; that he believed it would be to her best interest that she remain in his custody. He alleged that if Georgia Mae should be given the custody of Susan it would take her out of the jurisdiction of the court.
The court made findings of fact and conclusions of law as follows:
“1. The parties hereto were married on the 19th day of April, 1941, at Columbia, South Carolina.
“2. The plaintiff was divorced from the defendant by the decree of this court on the 6th day of January, 1943.
“3. At the date of said divorce, the defendant had given birth to a child whose name is that of Susan Earle Hedding and she continued in her custody until about the month of September, 1943.
“4. That in September, 1943, and at the request of the defendant, the plaintiff made a trip to South Carolina to obtain said child and to take the care and custody of it because of the inability of the defendant to properly care for and maintain said child.
“5. That on the 3d day of May, 1944, pursuant to regular proceedings had in this action and upon due notice to the defendant, the District Court of Washington County, Kansas, awarded the legal custody of said child to the plaintiff, but without dealing with the subject of the visitation rights of said defendant, or any other rights, with respect to said child.
“6. Said child has ever since the time it was removed from South Carolina to the State of Kansas as above mentioned, continued in the care, custody and under the control of the plaintiff, said defendant having visited said child once in the interim for a period of three or four days at the home of the plaintiff in Washington County, Kansas.
“7. Under the evidence produced in this case there is no question present as to the fitness of the plaintiff to continue the custody of said child, nor as to his having given said child proper care and attention as well as educational advantages due to said child. His home is amply sufficient and his employment and earnings are fit and sufficient to provide, and he does provide, said child with all the necessaries of life and to the extent of most of the luxuries to which she is entitled.
“8. Said defendant is now married to a man 56 years of age, a cattleman by trade or profession and the owner and lessee of a large amount of land in the State of South Carolina, and he has thereon sufficient improvements and does maintain a large home which would be suitable for the proper care and maintenance of said child. No question has been injected in this case as to the defendant bearing a proper reputation for morality, and no question as to her fitness to have the custody of said child other than the circumstances and facts above related herein relative to the custody and care of said child.
“9. As a matter of - fact, due to the conditions heretofore existing, said child does not in truth know its mother, the defendant herein, and has had no opportunity to associate with her due to the circumstances above provided which were mainly brought about by the acts of the defendant.
“10. Said child has never in fact known any other place of residence than Washington County, Kansas, her associates reside there and her whole life has been, to the date hereof builded upon such association and acquaintance.
“11. Some evidence was offered in this case as to the fitness of the defendant to have the custody of the child, which the court desires now to say was not properly admitted, nor did it tend to prove such fact in any manner. The length, of acquaintance of such witnesses and the fact that their opinion was based upon representations of the defendant made the same entirely improper. However, as stated above, no question is here present as to the fitness of said defendant to have the custody of said child.”
“Conclusions of Law.
“The best interests of said minor child, Susan Earle Hedding, will be promoted and served by leaving her in the custody and under the control of the plaintiff.
“To remove her from the State of Kansas to the State of South Carolina would be ill-advised and not tend to promote or serve the best interests of said child.
“Therefore, the application for a change of custody is denied and the costs of the hearing are assessed to the defendant.”
Judgment of the court was entered according to these findings.
Georgia Mae filed a motion for a new trial on the ground of abuse of discretion, erroneous rulings of the court and that the decision was in whole or in part contrary to the evidence. This motion was overruled. Georgia Mae has appealed from the findings of fact and conclusions of law and from the judgment denying that the child be given the right of visitation to her in South Carolina during the summer months of June, July and August and from the order overruling her motion for a new trial and from all adverse rulings arid conclusions of the court.
The assignments of error followed the notice of appeal.
The court on June 12 denied a motion of Georgia Mae for an alternative order to permit Susan to visit her in the summer and ordered that she have the right at all proper times to visit her in her fathers home in Washington insofar as it did not unreasonably interfere with the care and control by John.
Georgia Mae argues here the order of the trial court denying her motion for a change of custody and the order denying the right of visitation during the summer was an abuse of discretion.
The motion was filed pursuant to G. S. 1949, 60-1510. That section provides as follows:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
Actually there is not much dispute about the facts. We have no way of knowing except from what she testified to what caused Georgia Mae to leave Washington and return to South Carolina, knowing, as she must have, that she was pregnant. It makes but little difference in our decision now. It is not disputed and there can be but little doubt that she was in dire distress when she wrote John and asked him to come get the baby. We are not disposed under the circumstances to give that voluntary surrender much weight in considering our present question. The provision made by the trial court in the original divorce decree for the payment by John of support money for the baby was not generous. John’s failure to make all these meager payments is not too commendable. That failure, however, is given.but little weight here. We are concerned altogether with Susan’s welfare. There is no doubt but that the situation has changed with reference to the ability of Georgia Mae to care for her daughter. She has become a trained nurse and is able to earn enough to support them both. Besides that she is married to a respectable man who is willing to permit her to bring the little girl into their home. He is able to support both of them and they have a nice country home. The trial judge summed up the situation as to the facts as he saw them'in findings 9 and 10. There he found:
“9. As a matter of fact, due to the conditions heretofore existing, said child does not in truth know its mother, the defendant herein, and has had no opportunity to associate with her due to the circumstances above provided, which were mainly brought about by the acts of the defendant.
“10. Said child has never in fact known any other place of residence than Washington County, Kansas, her associates reside there and her whole life has been to the date hereof budded upon such association and acquaintance.”
It is clear the trial court properly deemed the best interests of Susan to be the paramount issue. Such is clearly the law. (See Frier v. Lancaster, 169 Kan. 368, 219 P. 2d 358.) The trouble about that rule is it is easy to state but difficult to apply. Every case has some new feature. One cannot read the reports of this court without being convinced that justices from the time of the revered Justice Brewer down to now have felt their inadequacy. Such cases have been submitted to us many times. We can only do our best to look beyond the personalities of the older persons concerned to the welfare of the child.
Here we approach the decision with a determination to make such a decision. At the present time Susan is in Washington county in her father’s custody. Her grandmother, however, who is in her early seventies, is charged with the actual care of her. John’s sister, who did make her home with them, is married and gone now, so John’s mother is left alone to keep house for him and care for the little girl. They live in a four-room house and there was evidence that Susan either has to sleep with her grandmother or sleep on a pallet on the floor. On one occasion at least she was sleeping on the floor. In fairness, however, it must be said that she is well be haved, neatly dressed and according to the affidavit of one schoolteacher, which was admitted in evidence, she is courteous in her conduct and demeanor, above the average in intelligence, and was neat and clean at all times. It really cannot be said that her father and grandmother have not done a good job raising her so far.
The whole thing boils itself down to this — what will best serve this child for the future? Both parties are her own parents. Neither one has an absolute right to the custody of this child exclusive of the other. In a case of this sort we naturally must give some consideration to the relative financial condition of the two contending parents, not exclusively, because the possession of wealth is no guaranty that one will make a good parent, nor does the lack of wealth mean one will not. It should only be considered for what bearing it has along with other surrounding facts and circumstances on the ability of either parent to give this little girl a good home, a proper education and best fit her to live a rich and full life and the likelihood that they will do so.
One thing Georgia Mae can give her, which no one else can — that is a mother’s love. Indeed on the witness stand that seemed to be uppermost in her mind. Who can say, perhaps where each parent can clothe, feed and provide adequate shelter for her equally, the mother love item should tip the scales? We have come to that conclusion. Georgia Mae should have custody of Susan from September 1st to June 1st of each year. John should have custody of her from June 1st to September 1st each year. Georgia Mae must come to Washington and get her each September and take her to South Carolina. John must go to South Carolina and get her every June 1st and return with her to Washington. John must deliver her to Georgia Mae each September 1st. Georgia Mae must deliver her to John each June 1st. John is relieved of any duty to support her while she is with Georgia Mae. Susan will be out of the jurisdiction of this court when she is taken to South Carolina, so Georgia Mae is ordered to deposit with the clerk of the district court of Washington county, Kansas, a good and sufficient bond in the amount of $1,000, subject to the approval of the clerk of that court, conditioned that she will deliver Susan to John on the first of every June and abide the further order of this court or the district court of Washington county, Kansas. This order shall not become effective until Susan has finished this school year. On that account John is ordered to deliver Susan into the hands of Georgia Mae on her appearing for her at Washington, Kan., on July 1, 1952, and on the giving of bond above described and on the 1st of September each year thereafter. In case Georgia Mae fails to or refuses to post the bond above described, the judgment is affirmed; otherwise it is modified in accordance with this opinion.
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The opinion of the court was delivered by
Smith, J.:
This' action was to recover for damages alleged to have been sustained when plaintiffs were caused to be falsely imprisoned by defendants. Judgment was for the plaintiffs and defendants have appealed.
There were two actions, one by the wife and one by the husband. They were consolidated in the trial court and tried together. They have been presented in this court as one appeal. Hereafter the pleadings will refer to the pleading in the case of the wife since they are identical with the exception of the names. At the outset, the George Innes Company, one Wertz and one Marshall, as well as Montgomery Ward and Company and one Wehby were defendants. During the course of the trial plaintiffs dismissed as to the George Innes Company and Wertz. The demurrer of Marshall to the evidence was sustained and the trial proceeded against Montgomery Ward and Wehby.
The petition alleged the identity of the parties; that R. G. Marshall was an agent and employee of Montgomery Ward and the acts performed by him were in the course of his employment; that defendant Wehby was the store detective in the retail store for Montgomery Ward and the acts performed by her were in the course of her employment; that Wertz was employed by the George Innes Company as a floor walker and supervisor.
The petition then alleged that on September 29, 1948, the plaintiff was making a purchase of merchandise in the Montgomery Ward store with her husband; that they gave a check in the amount of the purchase price for some merchandise to an employee of defendant, together with identification and credit cards; that after waiting an unreasonable length of time she, with her husband, went to the office of the defendant and found an employee of defendant, who stated that she had been unable to find anyone to approve the check; that the check and identification cards were returned to her husband and he destroyed the check and left the store; that she, with her husband, then went to the George Innes Company store; that while so engaged in shopping in that store Marshall and Wehby, agents and employees of Montgomery Ward, entered the George Innes Company store and consulted with Wertz and one of the defendants called the Wichita police department and requested a police officer to be sent to the store; that about four o’clock on the 29th of September, 1948, Montgomery Ward using its agents and employees, Marshall and Wehby, and George Innes Company through its agent and employee, Wertz, all of them acting in the course of their employment unlawfully, maliciously and willfully and without cause caused the plaintiff to be taken into custody by an officer of the Wichita police department and to be transported against her will to the police station with the intent to injure her; that she was compelled by force to accompany the police officer, whereupon she was imprisoned and restrained of her liberty for a period of more than one hour, all without cause and without any right or authority and against her will, all at the direction of each and every one of the defendants, whereby she was humiliated and mortified and her character and credit discredited and such false imprisonment caused her credit and standing to be injured; she was prevented from attending to her necessary business during the time she was falsely imprisoned and her health was impaired so it was necessary that she be under the care of a doctor, all on account of this false imprisonment; that neither Montgomery Ward, George Innes Company, Marshall and Wehby nor Wertz filed any complaint or formal charge against her.
The petition then alleged because of these unlawful, willful and malicious acts she had suffered actual damages in the amount of $10,000 and punitive damages in the amount of $20,000.
She prayed for judgment for that amount.
The answer of Montgomery Ward, Goldie Wehby and R. G. Marshall was a general denial.
The petition of the husband was identical.
The jury returned a verdict in favor of the wife in the amount of $10,000 actual and $10,000 punitive damages and for the husband $7,500 actual and $10,000 punitive damages. It answered special questions as follows:
“No. 1. Q. Was the conduct of Wallace F. Hammargren at the Montgomery Ward store in Wichita in presenting a check drawn on a bank in Cambridge, Minnesota, and then, when there was a delay in getting it approved, tearing it up, of such a nature as to cause a reasonable, cautious person to become suspicious of his character or intentions? Answer: No.
“No. 2. Q. Do you find that when Goldie Wehby communicated with Officer Donald Walters in the George Innes store, that she acted in good faith and as a reasonable, cautious and prudent person would do under the circumstances? Answer: No.
“No. 3. Q. If you answer question No. 2 in the negative, state in what regard she failed to act in good faith or as a reasonable, cautious or prudent person would have acted under the circumstances. Answer: She acted with undue haste, with lack of sufficient facts, malice of legal nature, and with lack of proper motive based on no reasonable grounds.
“No. 4. Q. Whom if anyone, do you find requested Officer Walters to bring the plaintiffs to the detective office for questioning? Answer: Lt. Cook.
“No. 5. Q. Do you find that when the plaintiffs accompanied Officer Donald Walters from the George Innes Company store to the office of Detective Frieson, they did so voluntarily or involuntarily? Answer: Involuntarily.
“No. 6. Q. If, in answer to question No. 5 you find that the plaintiffs accompanied the officer involuntarily, state what the police officer said or did to cause the plaintiffs to go to the police station involuntarily. Answer: Officer Walters asked the plaintiffs to go to the police station with him to talk to the Lt. When the plaintiffs asked Officer Walters if they had to go with him, Officer Walters said, ‘Yes, you have to go.’
“No. 7. Q. If you find for either of the plaintiffs and award punitive damages for such plaintiff, state what malice or wrongful motive you find prompted the defendants, or either of them, and on account of which such punitive damages are allowed. Answer: Pursuit of said plaintiffs to Geo. Innes Co. store with lack of proper motive, insufficient evidence, and causing them to be taken into custody by the Police constitutes legal malice and sufficient wrongful motive in itself.”
The defendants, Montgomery Ward and Goldie Wehby, filed a motion for judgment and to set aside special findings and for a new trial as follows:
“1. That judgment be entered against the plaintiffs and in favor of these defendants for the reason that no cause of action has been stated or proved against these defendants.
“2. For judgment, notwithstanding the general verdict, upon the Jury’s answers to the Special Interrogatories', particularly Interrogatory No. 4.
“3. In the alternative, that the answers to Special Interrogatories numbered 1, 2, 3 and 7 be disapproved and set aside by the Court for the reason that the same are not supported by the evidence and are, in fact, contrary to the evidence.
“4. And in the alternative, that the defendants individually be granted a new trial for each and all of the following reasons:
a. Because of the abuse of discretion of the Court, misconduct of the jury and of the plaintiffs', accident and surprise against which ordinary prudence could not have guarded,
b. Erroneous ruling and instructions of the Court,
c. That the verdict was given under the influence of passion and prejudice,
d. That the verdict is in whole and in part contrary to the evidence.”
This motion was overruled and judgment was entered on the general verdicts.
Defendants appealed from all adverse judgments, orders and decisions and in particular from the final judgments and from the rulings of the trial court on the motions for judgment, for setting aside special findings and for a new trial.
The specifications of error were as follows:
“1. The Court erred in overruling the motion of the defendants Montgomery Ward, & Company and Goldie Wehby for judgment on the opening statement of the plaintiffs.
“2. The court erred in admitting Exhibit No. 2 and evidence of the net worth of the defendant, Montgomery Ward & Company.
“3. The Court erred in overruling the demurrer of the defendants Montgomery Ward & Company and Goldie Wehby to the plaintiff’s evidence.
“4. The Court erred in refusing to give the instructions requested by the defendants Montgomery Ward & Company and Goldie Wehby.
“5. The Court erred in instructing the jury, particularly in Instructions Nos. 8, 9, 10, 12 and 13.
“6. The Court erred in giving an oral instruction to the jury in violation of G. S. 60-2909 and G. S. 60-2913.
“7. The Court erred in overruling the motion of defendants Montgomery Ward & Company and Goldie Wehby for judgment, setting aside findings or for new trial.
“8. The Court erred in admitting hearsay evidence from the witness Cook as to conversations had with Officer Walters.”
At the conclusion of the plaintiffs’ evidence the defendants demurred to it and this demurrer was overruled to all except defendant Marshall. It was sustained as to him.
Defendants’ first argument is that the court erred in overruling the demurrer to the evidence. The argument in this connection is that since the sole testimony of the plaintiffs was that the defendant Wehby merely reported facts and information to the officer without requesting any police action, even though the police detained plaintiffs, and no action for false imprisonment lies against defendants.
We start the consideration of this argument under the rule that in consideration of a demurrer to evidence all the evidence introduced by the plaintiffs must be taken as true and all reasonable inferences and deductions must be drawn therefrom in favor of the theory of the plaintiffs and if when so considered there is any substantial evidence to sustain the plaintiffs’ case, the demurrer should be overruled. (See Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669.) Furthermore, every fact which is fairly and logically to be inferred from the evidence must be drawn in favor of the plaintiffs. (See Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803.)
The evidence of plaintiffs was that they entered the Montgomery Ward Retail store and since they contemplated buying articles in different departments asked the clerk for a purchase slip, upon which articles purchased in different departments could be entered and settled for at the central desk by one payment. After twenty or thirty minutes the clerk told plaintiffs that no such slips were obtainable at that time; Mr. Hammargren then wrote a check for $13.42, the exact amount of the merchandise they wished to buy, and gave it to the clerk, together with credit cards issued to him from three hotels.
This check had the name of plaintiff with the address “Wichita, Kansas” printed on it and it was drawn on a bank in Cambridge, Minn. At the time of the incident described he had a low credit balance of $1,976.15 and a high credit balance of $3,608.21. The clerk took the check and credit cards saying the check would have to be approved and left the Hammargrens standing at the counter. After another twenty or thirty minutes had passed and the clerk did not return, upon inquiry Hammargren learned that the clerk had gone to the credit department on the fifth floor with the check and credit cards. Hammargren went to the credit department; found the sales clerk, to whom he had given his check. He asked for some explanation and was told that the telephone operator had the check and was attempting to locate a store executive who alone could approve or disapprove it. He thereupon asked for his identification cards and the check and when he received them he tore the check up and returned to his wife. . They then left Montgomery Ward’s, met a friend and all three went directly to the George Innes Store, a block and a half away.
Defendant Wehby had been employed as a store detective in Montgomery Ward’s for several years. She was well known to the police officers and had on many occasions brought persons to the police station. Sometime after the Hammargrens had reached the George Innes store officer Walters of the police department was di rected by the radio operator-dispatcher to contact a Mr. Wertz at that store. When he arrived there he was told by someone to see Goldie Wehby, who was on the fourth floor. (Wehby, it will be remembered, was the store detective for Montgomery Ward’s and had no connection with the Innes store.) Mrs. Wehby told the officer that the Plammargrens had been shopping at Ward’s and Mr. Hammargren had written a check; that when he was informed the check would have to be examined and okayed before it could be cashed he had torn it up and left the store; that she had followed Mr. and Mrs. Hammargren from the Montgomery Ward store to the Innes store. She pointed out Mr. Hammargren and identified him to the officer as the person who had written the check.
The officer called the lieutenant at the police station, a man who had known Mrs. Wehby for a period of years and who knew she was the house detective at Ward’s store. Walters told the lieutenant that Mrs. Wehby had identified the Hammargrens as the people she had followed from Ward’s to the Innes store and repeated the story substantially as had been told to him by Mrs. Wehby. The officer then asked the lieutenant if he should bring the Hammargrens to the police station and the lieutenant said “Yes.”
Walters, in uniform, with shield, badge and gun, approached the Hammargrens and asked Mr. Hammargren if his name was “Hammargren.” Hammargren said it was. Walters then said “You come with me.” “The lieutenant wants to talk to you.” Hammargren wanted to know why and officer Walters said ‘Well evidently there has been some mis understanding.” Hammargren said “Do I have to go?” And the officer said “Yes you do.” Mrs. Hammargren asked if she had to go, too, and officer Walters said “Yes.” After some colloquy the third person with the Hammargrens was told he had to come along too. The officer took them to the public elevator and from the second floor to the ground floor and thence in a squad car, easily identified as a police car, to the police station.
Shortly after the officer had accosted the Hammargrens and told them they would have to go Mr. Hammargren said there would be a lawsuit. They arrived at the police station at about 4:35 and Mr. Hammargren was questioned by two detectives and at about 5:15 o’clock they were told they were free to go.
The police officer testified that when he received the call he went to the Innes store; that someone whom he did not know met him at the door and directed him to the fifth floor; at the fifth floor Wehby was pointed out to him; that he had a conversation with her. He then testified:
491
“Q. O. K., go ahead. Did you talk to her then? Did you tell her who you were or anything? A. Yes I had a conversation with her.
“Q. All right, what did she tell you and what did you tell her? A. She told me that this man and woman had been shopping in Ward’s and that the man had written a check and when he was informed the check would have to be examined and O. K.’d before it could be cashed that he had tom the check up and immediately left and that she had followed them to Innes.
“Q. Yes? A. She pointed out Mr. Hammargren and identified him as the person who had written the check and I went to the telephone and called my Lieutenant and told him what she had told me.
“Q. When you talked to him did you tell him who had told you that? A. Yes I believe I did.
“Q. O. K., go ahead. A. I asked him if I should bring them to the station and he said “Yes’.
“Q. Then what was next? A. While I was making the phone call I believe they left that floor and I went down on the elevator thinking they would be leaving the store.
“Q. Now when you started to go down the elevator did Mrs. Wehby stay where she was or did she go any place or what did she do? A. I don’t recall exactly where she did go at that time.
“Q. Go ahead. A. I was notified that they were on the second floor. I don’t recall that it was Mrs. Wehby, but I went to the second floor and I believe it was on the second floor they were looking at bed spreads. I went over and asked Mr. Hammargren what his name was and he showed me a blank form from the store with his name on it and I think I wrote his name down and I told him I would have to ask him to come to the station with me to see the Lieutenant and he wanted to know why and I told him I thought there had been a misunderstanding of some kind on a matter of a suspicious nature.
“Q. Go ahead. A. And he seemed to be cooperating as far as my request was concerned but he verbally protested to the effect that there would be a lawsuit.
“Q. That what? A. That there would be a law suit.
“Q. All right? A. And I believe I asked him if the lady there was his wife and one of them answered, I believe Mr. Hammargren, that she was, and I believe she said ‘do you want me to go too?’ and I said ‘Yes, I would like for you to’ and she mentioned something about being embarrassed and then the other man, Mr. McCormick I believe is his name, came over and joined them. I don’t remember the exact conversation. I think I asked him to come along also and then we left the store by way of the elevator and my car was parked at the south entrance of Innes. The door was being repaired at the time and was closed or blocked off some way, I don’t recall. I had to take the car and go to the station and Mr. Hammargren there on the way to the station was anxious to know the origin of his being called into the station and Mr. McCormick said something about the Wichita police department being fast and I told him they weren’t that fast, and then Mr. McCormick stated ‘You are so tall they could spot you anywhere.’
“Q. Talking to you? A. No, to Mr. Hammargren.
“Q. I see. A. That’s about all the conversation I can recall.”
One detective who had been with the department twenty years testified that Wehby was a store detective at Ward’s and on occasion had brought people into the police station.
Another police officer testified that on the date in question he had a conversation with officer Walters about Wehby and some people she had pointed out as being suspicious characters. There was an objection on the part of defendants and after some colloquy the witness was permitted to state that Wehby’s name was mentioned and that after the conversation he instructed Walters to bring the defendants in.
Defendants argue that all the above evidence proved was that Wehby saw some suspicious circumstances connected with the Hammargrens and reported it to the police. They refer to Instruction No. 10/2 which the court gave in this case. It is as follows:
“You are instructed that when a person in good faith, acting as a reasonable, cautious and prudent person under the circumstances upon the information which he or she has received, believes that the actions of a person are suspicious, he has a right to inform the police of the fact and of his belief so formed, and if in so doing he acts without any malice or sinister motive, such person is not responsible for any arrest which may follow, made by the police authorities acting upon their own volition although based in whole or in part upon the information given such police authorities.”
Defendants argue that had the court applied the above rule of law to the facts when considering the demurrer, the demurrer to the evidence would have been sustained.
Actually the evidence is not entitled to quite the construction placed upon it by the defendants. We must in considering this argument draw all reasonable inferences in favor of the plaintiff.
Any cause of action may be proved by circumstantial evidence as well as by direct. Here we have the incident in the Ward store, the check being given, the long wait, later the check demanded back, torn up, thrown on the floor and the Hammargrens leaving, a few minutes later the Hammargrens at the Innes store, a block and a half away, the call to an officer, defendant Wehby at the Innes store, the police officer being directed to her, she pointing out the Hammargrens, (the jury and trial court were entitled to infer that she told him the Hammargrens’ name, since he would have had no other means of knowing, and she must have gotten the name off the check or the credit cards, since she would have had no other way of know ing it,) then her statement to the officer about what happened at the Ward store, which under the rules of considering a demurrer to the evidence we must consider as not true because it is not the story of what happened, if we are to believe Hammargren s testimony, as we must on a demurrer to the evidence. She told the officer he left when told the check would have to be examined and okayed before it could be cashed. We have already stated his story, which was an entirely different version of the affair.
The jury would be entitled to presume from the testimony of the officers and the Hammargrens that Wehby caused the radio call to be made that brought officer Walters there; that she had followed the Hammargrens to the Innes store, pointed out the Hammargrens to the officer and told him officer Walters called the lieutenant at the station and when he told the story and mentioned Wehby’s name the officer proceeded to arrest the Hammargrens. Once we take all these facts as true, which we must do on considering a demurrer to the evidence, then a reasonable inference to be drawn from all of them is that Wehby caused this arrest.
We will examine the question of whether the circumstances at the Ward store were such as to compel a conclusion that Wehby acted in good faith or as a reasonable, cautious and prudent person would act or that the circumstances were suspicious. In the first place, the check was given for the exact amount of this purchase. It is a reasonable inference that everyone in business, especially a store detective, would know a bad check artist ordinarily uses the device of purchasing a small amount of merchandise and giving a check for more than the purchase price and thus pocketing the change. In the second place, Hammargren used a check form that would attract attention. It is a reasonable inference this is something ordinarily a bad check artist would avoid. In the third place, he used a distinctive name. It is a reasonable inference that bad check artists use a name that lends itself readily to anonymity. .In the fourth place, he gave the girl credit cards, two of them on Wichita hotels with his name on them. A minute’s telephone call to one of these hotels would have shown if he was a phony. In the fifth place, he tore the check into four pieces and threw them on the floor, thus leaving a ready means of identification, just before he left. In the sixth place, in considering a demurrer to the evidence we must presume he and his wife had a natural and explainable reason for asking for the return of the check and leaving. These facts we must take as true and from them draw all reasonable presumptions in favor of plaintiffs.
Defendant argues they compel an inference that an ordinary, reasonable, cautious and prudent person would consider them suspicious. We cannot so hold. Granting for the sake of argument that Wehby was entitled to weigh these circumstances as an ordinary, reasonable person, still it is a question for the jury whether these circumstances were suspicious and whether she did act as an ordinary reasonable person.
In Lemmon v. King, 95 Kan. 524, 148 Pac. 750, the plaintiff had been arrested without a warrant. He recovered judgment and on appeal we said:
“A reversal is asked on the ground that the defendant could not be liable for the arrest, conceding it to have been wrongful, unless he requested it or directed it, and that there was no evidence at all to that effect. The contention fails because while there was much testimony that the defendant merely reported the facts, and that the officer acted only on his own initiative, or by the direction of his superior, there was some to the contrary.”
This opinion is reported in Ann. Cas. 1917 E p. 401. At page 406 there is a statement fortified by an imposing list of authorities that
“It is well settled that where a private person induces an officer by request, direction, or command to arrest another without a warrant and without an offense having been committed in view of the officer, he will be hable for false imprisonment unless he justifies by showing that the charge was well founded.”
We have already demonstrated that considering the record under the rules applying to a consideration of a demurrer to the evidence, there was substantial evidence here to warrant submission to the jury of whether Wehby caused and instigated this arrest. The rule is stated in Hoock v. Kresge Co., et al., 222 S. W. 2d 568. There the court held that one seeking to recover for false arrest must prove that he was unlawfully caused to be arrested by defendants, and, though it is not necessary that the arrest was directly ordered, it must appear that persons sought to be charged either instigated it, assisted in arrest, or by some means directed, countenanced, or encouraged it.
The above is but-a variation of the rule that a cause of action may be established by circumstantial evidence. Actually there is but slight difference between these parties as to the applicable law. The only difference is' as to the presumptions and inferences to be drawn from the facts.
Defendants argue that we should weigh the evidence and reach a conclusion other than that reached by the trial court and the jury. No one point in our law is any better established than that we cannot do that, on the consideration of a demurrer to the evidence. They ask us to examine the ultimate facts and draw an inference from these facts other than that drawn by the trial court and the jury. We cannot do that where the inference drawn by the jury was a reasonable one. Here we have already demonstrated the inferences drawn by the jury and contended for by the plaintiffs were reasonable. Counsel for defendants stated in their reply brief:
“The plaintiffs contend with great vehemence that Goldie Wehby gave Officer Walters a highly colored, distorted, or even untrue statement of the facts. Such a claim is patently false. It is merely necessary to take Hammargren’s own testimony and compare it with the undisputed statement given by Mrs. Wehby to Officer Walters, and it will be immediately seen that she did not distort the facts in any manner. As demonstrated by the plaintiff’s own evidence, Mrs. Wehby gave the officer all of the facts within her knowledge, and what she gave the officer was in exact conformity with the events that had occurred.”
There is substantial evidence from which the jury was warranted in believing that Wehby did make an untrue statement to Walters as to what happened in the Ward store. We are bound to reach such a conclusion when we consider this evidence under the rules for the consideration of demurrers to the evidence.
Defendants next argue that Montgomery Ward was not liable for any acts of defendant Wehby which were not expressly authorized or implied from authority given her. They argue that her own conduct could not supply proof of the scope of her authority. To maintain this argument they cite and rely on Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875, where we held:
“Where an arrest is caused by a subordinate agent or employee of a corporation there is no implication that he is authorized by the company to do so except when the arrest is made for the protection of the principal’s property in his immediate charge or in connection with its recovery or to prevent a crime at the time it is being committed.”
In the case of Mercer v. Fred Harney, Corporation, 116 Kan. 365, 226 Pac. 761, in dealing with a similar question we said:
“If the unlawful arrest is caused by a general agent, such as general manager, general superintendent, or one performing the duties of such an agent, or by a special agent whose general duty is to investigate and prosecute offenses committed against the company, specific authority to cause the arrest in question need not be shown. It will be inferred from the relationship as a matter of law if there is no controversy about the position of the agent. Under some circumstances the authority of the officers causing the arrest may be a proper question to submit to the jury.”
It was stipulated at the trial Wehby was at the time of the events related a store detective for Montgomery Ward & Company and that she was working on that particular day. There was evidence from which a presumption that she was at the store and followed Hammargren down the street was a reasonable one. Certainly a reasonable inference to be drawn from the fact that she told the officer the story and pointed the Hammargrens out to the officer was that she was a house detective and was working. There was evidence as already noted in this opinion that the police had known her for a period of years, and that she had on numerous occasions brought persons to the police station. Such an agent has far greater authority than the ordinary employee.
In this connection defendants complain of a paragraph in Instruction No. 10 as follows:
“What her authority actually was may be implied from the conduct of the parties and tire things that were actually done and the facts and circumstances surrounding the transaction.”
There was substantial evidence upon which to base this instruction. Here again we must draw all reasonable inferences in favor of plaintiff. The rule is stated in 22 Am. Jur. 380, Sec. 37 as follows:
“The fact that an agent, through lack of good judgment or proper discretion, or infirmity of temper, or under the influence of passion aroused by the circumstances, has gone beyond the strict line of his duty or authority and inflicted unjustifiable injury upon another does not relieve the master from liability.
“The liability of a master or principal for the act of his servant or agent in causing a false arrest or imprisonment depends upon whether the master or principal previously authorized the act, or subsequently ratified it, or whether the act was within the scope of the servant’s or agent’s employment; and in the determination of the scope of authority of the agent and the responsibility of the principal, liberality must be accorded the person falsely imprisoned.” (§37.)
In Chesapeake & Potomac Telephone Co. v. Lewis (USCA DC) 99 F. 2d 424 (1938) the court held that if defendant or defendants agent actually took part in the arrest or imprisonment of plaintiff or procured or instigated acts of officers of the law, the defendant is liable in an action for false imprisonment. Uncontradicted testimony showed that the officers who arrested plaintiff did not know him by sight and arranged with defendant’s employee Whip, who did know him, to go with them in order to identify him. The jury might infer that the officers would not have started without Whip. Although Whip remained in a car while the officers entered a building and made the arrest, they promptly brought plaintiff to the car and the jury might infer the identification which Whip then made was an essential factor in plaintiff’s ensuing imprisonment.
See, also, 22 Am. Jur. 384, Sec. 44, where it is held:
“Positive evidence is not required to make out a case. Thus, where a private detective has express authority to arrest or cause the arrest of offenders or such authority is clearly implied from the general scope of his duties, there is no question but that the master is liable in case a wrongful arrest is made.”
There was substantial evidence from which the jury could infer that the acts of Wehby in pursuing the Hammargens from Montgomery Ward’s store to the Innes store and there making a misstatement of the occurrence in the Ward store were authorized and within the scope of employment as a house detective.
Defendants next argue that proof Wehby was a house detective for Montgomery Ward & Company on the day in question did not prove her authority to bind Montgomery Ward for an arrest alleged to have been caused by her off her employer’s premises and in another mercantile establishment where neither property or crime against her employer was involved. There was substantial evidence from which the jury might infer that Wehby was on duty as a house detective at the time in question.
There is a discussion of this question in 35 A. L. R. 679. The rule stated in L. S. Ayres & Co. v. Harmon, 56 Ind. App. 436, 104 N. E. 315 (1914) is approved there. A comment on this case states:
“Similarly, a private detective employed by a department store, whose duty it was ‘to guard and protect its property from theft, and to report to the company or to the city detectives when any acts of larceny were committed,’ has been held to have been acting within the scope of her authority in following a person suspected of theft, and procuring his arrest away from the company’s premises. L. S. Ayres & Co. v. Hannon (Ind.), supra, wherein the court said that the act of the detective ‘when directing the attention of the policeman to a person whom she believed had committed the crime in question, even though said person was not actually on the premises of appellant, L. S. Ayres & Company, and the arrest of appellee by the officer pursuant to said Information, though not on the premises of said appellant, is well within the rule making appellants hable.’ ”
In the above case the Indiana Court of Appeals said that the act of the detective when directing the attention of the policeman to a person whom she believed had committed the crime in ques tion, even though said person was not actually on the premises of appellant, L. S. Ayres & Company, and the arrest of appellee by the officer pursuant to said information, though not on the premises of said appellant, is well within the rule making appellants liable.
Here again we remark we are compelled to examine this evidence under the rules for the consideration of demurrers to the evidence. There was substantial evidence from which the jury was warranted in drawing the inference that Wehby was acting within the scope of her authority when she followed the Hammargrens to the Innes store and caused their arrest.
Defendants next argue there was no evidence of malice and the court erred in permitting the issue to be considered by the jury. This was instruction No. 9. It stated, in part:
“Before you can render a verdict for the plaintiff for punitive damages, you must find that there was actual damages in some substantial amount, and also that there was malice, or a wanton and willful invasion of the plaintiff’s rights.
“Malice is defined as any indirect motive of wrong, and in a legal sense, any unlawful act which has been willfully and purposely done to the injury of the plaintiff is malicious; and by malice is meant not the act but the motive which prompts the act. It consists of a bad motive or such reckless disregard of the rights of others as' to show evil intent. It is an act based upon an improper motive and does not necessarily presuppose personal hatred, ill will or revenge. The improper motive or want of improper motive inferrable from the wrongful act based upon no reasonable ground constitutes of itself all the malice deemed essential in law to entitle the plaintiffs to recover punitive damages if they are entitled to recover damages as herein instructed.
Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the defendant, is, in legal contemplation, malice.”
Defendants argue there was no evidence in the case to warrant any such instruction. Defendants quote from Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P. 2d 652, where we quoted with approval a rule stated in 17 C. J. 984, § 281, as follows:
“ ‘An act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful. Nor would the circumstances that defendant would be liable to a criminal prosecution for the act complained of be in itself sufficient to determine his liability in exemplary damages. But it has been laid down as a general proposition that the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious so as to warrant an award of exemplary damages.’ ”
There is nothing wrong with that rule. The evidence justifying such an instruction has been stated a number of times already in this opinion. If the jury believed Hammargren’s story of what hap pened and why he left the Ward store and officer Walters’ evidence of what Wehby told him, this constituted substantial evidence from which the jury was warranted in finding that her acts there were wrongful, intentional, and with full knowledge of their character, and without just cause or excuse.
Defendants next argue that the trial court erred in admitting into evidence a page from Standard and Poors record what purported to be a comparative balance sheet of Montgomery Ward’s. A broker was first put on the stand and he was asked the question:
“Will you state to the Jury what the net worth of Montgomery Ward & Company is, according to the lastest records that you have?”
There was an objection to this on the ground that it was hearsay and had no relationship to the case. After some further examination of the witness out of the presence of the jury and colloquy between court and counsel witness was permitted to put in evidence a page in the book.
Plaintiffs argue that they offered an expert witness as to the worth of Montgomery Ward’s and that the page was offered at the request of counsel for defendants. Plaintiffs rely in the main on this point on the rule that where counsel for one party causes or invites a particular ruling, that party cannot later argue that such ruling was erroneous. An examination of this record convinces us that counsel for defendants insisted at all times that this page was hearsay. It was incompetent and should not have been admitted. (See Lewis v. Coleman, 194 Wash. 674, 79 P. 2d 633; also Youngs Market Co. v. Laue, 60 Ariz. 512, 141 P. 2d 522.) We do not in view of all the surrounding facts and circumstances regard its admission as so prejudicial as to require a reversal.
Defendants next argue it was error to receive this page since it was evidence of the net worth of only one of the defendants jointly liable. It was competent to introduce evidence of the wealth of the parties on the question of punitive damages. This evidence was as to the wealth of one of them only. They were jointly liable. (See Washington Gas Light Co. v. Lansden, 172 U. S. 534, 43 L. Ed. 543, 19 S. Ct. Rep. 296.) Under such circumstances it was error to introduce this as to one of defendants. There was no evidence as to the wealth of Wehby. There was no instruction as to how this was to be considered. Plaintiffs make the point that this objection was not made at the trial. Perhaps this is true. In view of the conclusion we will discuss presently as to the disposition to be made of the appeal, we do not regard these errors so prejudicial as to require a reversal.
Defendants next argue it was error for the trial court to transmit through the bailiff an oral instruction while the jury was deliberating. That came about this way — the jury after it started to deliberate asked the bailiff for the exhibits. Evidently some members of the jury thought some checks, which had been offered in evidence, and an objection to which had'been sustained, had actually been received. The jury asked for those cheeks. The trial court told the bailiff those checks had not been admitted and the bailiff so advised the jury. We discern no error in that.
Defendants next argue that counsel for plaintiff was guilty of such misconduct as to require a new trial. The first instance of such misconduct, as stated by counsel for defendants, has to do with those checks. Counsel for plaintiff said in his opening statement that Hammargren had cashed many checks similar to the check in this case in the vicinity of Wichita and he never had any trouble. He had a bunch of these checks in his hand and during the examination of Hammargren they were offered. Defendants’ objection to them was sustained for the moment. Later he offered them again and the objection was finally sustained. The announced purpose of counsel in offering those checks was for whatever weight they might have in showing that there was nothing suspicious in Hammargren offering the check at Ward’s. Counsel for defendants contend it was so well settled that these checks were not admissible for any purpose, that for counsel to offer them was misconduct. We cannot attach so much weight to this offer. To do so would tend to subject counsel to the charge of misconduct every time evidence was offered and the offer refused. Counsel for defendants make a point of the fact that counsel offered these checks on three different occasions. The first time they were offered the trial court sustained defendants’ objection for the moment. On account of this sort of ruling counsel naturally offered the checks again.
Defendants also argue counsel for defendants was guilty of misconduct in presenting the evidence of a telephone conversation between the two policemen. The police lieutenant was on the stand. He was asked whether officer Walters had called him from the Innes store on the date in question. When he answered in the affirmative, he was asked whom the conversation was about. Counsel for de fendants objected to this and the objection was overruled. The answer was “Goldie Wehby.” He then was permitted to testify that after the conversation he instructed Walters to bring the Hammargrens in. We see no misconduct here. There was no testimony as to the conversation. Officer Walters had already testified to this conversation without objection on the part of defendants. The telephone call was said to have been made immediately after Wehby. had talked to Walters and identified the Hammargrens and had told the officer her story of what happened at the Ward store. The reasonable presumption is that the call to the police station was the result of the talk between Wehby and Walters.
Defendants next argue that counsel for plaintiffs was guilty of misconduct in his argument to the jury. This argument is based on an extract from the final argument as follows:
“The trouble is that Goldie Wehby didn’t tell the police all about this. She is the one that concealed these things from the police officers and all-the policeman wanted to know was who was asking for the complaint and who was asking that they be arrested. Goldie Wehby’s name was mentioned and that was all that was necessary. The police came right over there and picked them up.”
Counsel for defendants state in their brief in this court:
“There is not a single word of evidence to support these crucial accusations against defendant Wehby. The following facts are undisputed in the record from the bps of the plaintiffs’ own witnesses, and they put the he to such accusations:
“(1) The police came to the Geo. Innes Company store as a result of a radio call to go there and to contact Mr. Wertz, a supervisor of the store. Goldie Wehby had nothing to do with it.
“(2) Goldie Wehby never once asked for any complaint nor that any arrest be made, and there is a conclusive finding by the jury that the only person who ever requested such action was Lieutenant Cook at the police station.
“(3) What Goldie Wehby told Officer Walters did not cause him to make any move whatsoever against the plaintiffs. On the contrary, he refrained from making any move on the basis of the information she had given him and acted only on the basis of directions from a superior officer.”
The trouble about that argument is defendants did not submit any evidence in the trial court, neither did they make any argument to the jury. They make for the first time in this court the argument they could have made there. There was substantial evidence from which the jury was warranted in finding all the above facts in favor of plaintiffs and against the contentions of defendants. The fact that Wehby told a story other than the truth about what Mr. Ham margren did at the Ward store is some evidence that she concealed what actually happened from the police.
Defendants next argue that the verdicts for compensatory damages were so excessive as to be explainable only by passion and prejudice. The jury returned a verdict for Mrs. Hammargren for $10,000 actual and $10,000 punitive damages. In Mr. Hammargren’s case it gave him $7,500 actual and $10,000 punitive damages. The actual damages she pleaded were “her credit and standing in the community was injured, she was prevented from attending to her necessary business and affairs during the time she was falsely imprisoned, and her health was impaired to such an extent that it was necessary that she be confined and under the care of a doctor.” Mr. Hammargren pleaded about the same damages. She testified:
“That they went home where she broke down and cried, and her husband called the doctor next day after she had spent a sleepless night and he had spent a sleepless night with her. Dr. Coleman was called and gave her a sedative for several weeks. That when she went shopping, she had the most uncertain feeling that a policeman might pounce on her again and she also had crying spells for months.
“That eight months later she became pregnant and she worried about whether it was going to effect her child; that she still thinks she will be pointed out as a criminal. That she had never had the frequent spells of crying and sobbing before September 29, 1948.”
A doctor testified:
“That on or about September 29, 1948, he was called to the Hammargren home and when he walked in he heard Mrs. Hammargren crying. That he examined her and found her considerably upset and had a little difficulty in getting her to answer his questions. That final examination established her temperature was normal; pulse and respiration slightly increased; and the doctor stated he would say she was suffering from ‘some reaction or what we call deferred state of' shock.’ That he gave her some sedative out of the satchel and then sent her some prescription from the drug store. That he received no further call from the Hammargrens.”
This is all the testimony there was as to actual damages suffered by Mrs. Hammargren. It will be noted the Hammargrens were never actually locked up. They were at the station a little less than an hour. On the question of actual damages Mr. Hammargren testified that for three months after the events described he felt that possibly the knowledge of what had happened had preceded him when he met people in business and that they looked on him as not a reputable character and that his earnings for that three months’ period were the lowest since he had been with the company.
A judgment should be reversed on account of the verdict being excessive where it appears so large as to indicate passion and prejudice on the part of the jury. Whether such is the case is always a difficult question. Sometimes courts hold in such a case that the fault may be cured by ordering a remittitur of a portion of the judgment. Four false arrest cases where the amount of the verdict was challenged by the defendant have been cited by defendant here. The largest verdict in any one of these four was for $5,000. The plaintiff in that case was not taken to jail but was stopped and searched on the street. ( Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875.) We ordered a remittitur of that verdict to $3,000. In these appeals should we conclude the verdict was too large, the error in the record could be cured by ordering a remittitur since we have concluded that the error of the trial court in the admission of evidence was not prejudicial.
In Lewis v. Montgomery Ward & Co., supra, there was no error requiring a new trial. In dealing with the argument of the defendant that the verdict was excessive we pointed out that the defendant had not objected to an instruction as to the elements proper for the jury to consider in computing actual damages, that is, past and present mental suffering, nervous shock and such damages as appeared to be the reasonable, natural and proper result of such condition and fair and just in view of the injuries sustained without regard to the character of the parties, the needs of the plaintiff or the ability of the defendant to pay. We reviewed the authorities and pointed out there was no fixed rule for computing such damages. Each case must be considered in the light of its own surrounding facts and circumstances. We approved a rule stated in Hardwick v. Railways Co., 114 Kan. 843, 220 Pac. 1043, as follows:
“Error based on an excessive verdict and judgment is seldom an easy question for an appellate court to solve, and it is peculiarly difficult where the sum allowed is for pain and suffering. Of course rules for dealing with excessive verdicts are not altogether wanting; if on reading the record the conscience of the court is shocked at the verdict, a remittitur or reversal is ordered; but there is no uniform yardstick, no hard and fast rule, by which the excessiveness of a verdict can be measured and determined as in ordinary mathematical calculations.”
In these cases there were no physical injuries. The testimony of both Mr. and Mrs. Hammargren as to the injury suffered by each in the way of nervous shock and damage to credit was hardly sufficient to warrant the jury in finding the one sustained actual dam ages in the amount of $7,500 and the other in the amount of $10,000. Each was awarded $10,000 punitive damages. As already noted, the question of whether a verdict and judgment is so large as to indicate passion and prejudice on the part of the jury or is such as may be cured by a remittitur must depend on the facts in each particular case. She had worked in this store, so it is reasonable to assume the shame and humiliation of being escorted through the store was somewhat greater than as to him.
Under all the surrounding facts and circumstances, we have concluded that Mrs. Hammargren s verdict as to actual damages was too large by $6,500 and should be reduced to $3,500 and that his verdict for actual damages was too large by $4,500 and should be reduced to $3,000. As to punitive damages, each of the plaintiffs was awarded $10,000. In assessing punitive damages the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the surrounding facts and circumstances may be considered. (See Will v. Hughes, 172 Kan. 45, 238 P. 2d 478.) We have already set out the pertinent facts and circumstances in this opinion. On account of the fact that the defendants introduced no evidence there is no dispute here as to the ultimate facts. The only dispute actually is the reasonable presumptions that may be drawn from these facts. We have concluded that considering all the above factors the verdicts and judgments for punitive damages were too large by $8,000 as to Mr. Hammargren and by $8,500 for Mrs. Hammargren; that his judgment for punitive damages should be $2,000 and hers should be $1,500.
These two cases were consolidated in the district court. Two separate verdicts and judgments were rendered, however. The order of this court is that Mrs. Hammargren is given the option of accepting $5,000 for both items, within ten days of the filing of this opinion, by filing an acceptance of that amount with our clerk, and Mr. Hammargren is given an option of accepting $5,000 for both items within ten days from the date of the filing of this opinion by filing an acceptance of that amount with our clerk. If the parties exercise that option as directed the judgment so reduced is affirmed. Failing to exercise that option a new trial on the issues generally is ordered.
Thiele, J., concurs in the result.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was a petition for allowance of a demand against a decedent’s estate. The demand was certified to the district court. There the court sustained executor’s demurrer to claimant’s petition. The claimant has appealed.
The petition stated petitioner had a claim against the estate by reason of a written contract whereby the deceased agreed to pay her $150 on May 22, 1941, and a like sum on or before the 10th of each month thereafter during the lifetime of the petitioner or as long as she did not remarry; that the installments falling due had been paid up to March, 1951; that subsequent to the date of the written agreement the parties were divorced in the district court of Shawnee county and the agreement was approved by the court and made a part of the decree. The petitioner prayed that her demand against the estate be allowed at its present value of $30,000 or that the court order an executor to retain in his hands a sufficient amount of the $40,000 to settle such demands. The contract of property settlement was attached to this petition. It recited that the parties realized they must separate; allowed certain real and personal property to petitioner and some to her husband; and contained the following paragraph:
“That Ray Shideler agrees to pay the said Cecelia M. Shideler the sum of $150 on the 22nd day of May A. D. 1941 and a like sum on or before the 10th day of each and every month thereafter during the life of said Cecelia M. Shideler, provided that upon the death of said Cecelia M. Shideler or her re-marriage all future obligation of the said Ray Shideler by way of monthly payments shall immediately terminate.”
The decree of divorce was also attached to the petition. It contained the following paragraphs:
“That the Plaintiff and Defendant have entered into a property settlement agreement and the same is hereby approved by the Court and the same shall be set forth and made a part of this decree.
“It Is Further Considered, Ordered and Adjudged and Decreed that the following Property Settlement Agreement be and the same is hereby approved by the Court and the same is made part of this decree to-wit:”
(Here follows a complete copy of the property settlement.)
On application of both parties this petition was certified to the district court. There the executor filed a demurrer on four grounds as follows:
“1. The said petition does not state facts sufficient to state a valid claim against said estate.
“2. Said petition for allowance of claim shows upon its face that the purported contract has been merged into judgment of the District Court of Shawnee County, Kansas.
“3. That said petition shows upon its face that the judgment of the District Court duly made and entered on June 2, 1941 requiring the payment of $150.00 monthly by said deceased to said claimant during her life time or until she should re-marry is void, unenforceable and contrary to the laws of the State of Kansas.
“4. That said petition shows upon its face that the provisions of said decree purporting to require said deceased to pay to claimant the sum of $150.00 monthly as long as she shall live or until her remarriage terminated upon death of the said Ray Shideler.”
The trial court sustained the demurrer — hence this appeal.
This demurrer was sustained on the theory that when the trial court approved the contract, that contract became merged in the judgment and since an alimony judgment must be for a definite amount, this judgment was void. He argues that this contract was for an indefinite amount, that is, $150 a month as long as Mrs. Shideler should live or remain unmarried, and that when it became merged in the judgment, the judgment was for an indefinite amount —hence void. He argues in other words that once this contract was approved by the trial court in the divorce action, Mrs. Shideler could no longer rely upon that contract to recover but must rely on her judgment.
We have considered this question heretofore. Feldmann v. Feldmann, 166 Kan. 699, 204 P. 2d 742, was a case where just prior to obtaining a divorce a man and wife entered into an agreement whereby he agreed to pay as maintenance and support for the wife and children $340 a month and to continue such payments as long as he should remain in the military service and upon the daughters attaining their majority or in the event of either prior to their attaining majority or the remarriage of the wife, it was decreed that there should be a renegotiation of the contract to determine what adjustment, if any, was fair and reasonable. The wife pleaded her contract and claimed it was binding upon the parties; subsequently the court gave her a divorce, custody of the children and approved the original and supplemental property agreement. Sometime after that the husband filed a motion to set aside all .of the divorce decree except that part that granted the divorce. This motion w.as denied and the husband appealed. We first pointed out that except where judgments were void, the orders and judgment of the court having jurisdiction of the subject matter were final and conclusive. The husband recognized that rule but argued that the paragraphs of the separation agreement we have mentioned violated the rule that alimony must be allowed in a definite sum and an award approving such a settlement was void. The husband in that case relied on Conway v. Conway, 130 Kan. 848, 288 Pac. 566, which is relied on by the appellee in this casé. We said:
“We have no quarrel with the rule announced in those decisions and adhere to them. The trouble with appellant’s position is that the decisions on which he relies are not in point and that he entirely overlooks another line of cases, applicable to the facts and circumstances here involved, holding there is a distinct difference between what the court has authority to do under the statute with respect to alimony in a divorce case and what the parties may agree upon.”
We finally held as follows:
“In this jurisdiction a husband and wife may enter into a marriage settlement whereby they agree upon a division of property as between themselves and payments to be made by the husband to the wife for the care and support of their children, including compensation to the wife for assisting the husband in fulfilling his parental obligation to such children while they are in her care and custody, and such an agreement, where it has been freely and fairly made, may be made a part of the judgment in a divorce action and the judgment thereby entered as to payments to be made to the wife is valid even though the sum total of such payments is neither itemized as to purpose nor definitely fixed as to amount.”
We see no distinction between Feldmann v. Feldmann, supra, and the present case.
To the same effect is French v. French, 171 Kan. 76, 229 P. 2d 1014. That was a divorce case where the trial court had approved a contract of property settlement entered into between the parties while husband and wife. In that contract the husband had agreed to pay the wife $250 a month for her support and maintenance and that of their two children. There was a further provision that should the wife remarry before the children became of age the payments were to continue at the rate of $75 a month for their support. The divorce decree contained a summarization of the provisions of the contract. Subsequently due to the fact the husband had left the military service the contract was modified as to amount of payments. Subsequently on motion of the husband to modify, the trial court held the portion of its judgment providing a part of the payments ordered be for the support of the wife until she should remarry should be disregarded since no total sum was provided. The wife appealed. We said:
“We have serious doubt the trial court’s conclusions 1 and 2, to which we have just referred, are warranted by the record. Under our decisions (See, e. g., Petty v. Petty, 167 Kan. 510, 207 P. 2d 428, and cases there cited) a separation agreement, approved by the trial court as a part of its decree in a divorce action, is not to be regarded as merged in the judgment in the absence of clear and unequivocal language requiring that conclusion. Even then it is by no means certain it can be said or held that such agreement is extinguished to the extent its contractual provisions are no longer binding upon the parties.”
In this case we discern no clear and unequivocal language in the divorce decree requiring a conclusion that the separation agreement was merged in the judgment. Actually no more appears than that the contract was exhibited to the trial court and that court approved it.
In Conway v. Conway, supra, the opinion states:
“The parties had entered into contracts relating to property matters which were carried into the judgment.”
The opinion itself quoted the judgment and the judgment makes no reference to a contract. The opinion made no reference to the contract being merged in the judgment. The property division was treated as though it were a matter of the judgment and the judgment only. The matter with which the opinion dealt arose over the refusal of the trial court to modify its judgment in the divorce case.
In Hullet v. Hullet, 133 Kan. 738, 3 P. 2d 470, the trial court in its judgment mentioned the property settlement; found that it made a fair and equitable division of the property; approved it; and stated:
“ ‘And each of the parties hereto is ordered and adjudged full ownership and title in the property as agreed in said contract.’ ”
We on the face of that record, said:
“The parties did not rest on the contract. It was presented to the court in the divorce action, and the provisions of the contract were carried into the divorce decree.”
The holding is not binding here. We find no language in this decree analagous to the above to the effect that the division of property in the settlement was fair and equitable. For aught that appears in the decree there was no evidence before the trial court other than the contract itself as to the reasonableness or equity of the property division. We encourage the settlement of property division by contract rather than by submitting the matter to the trial court. Often a wife is willing to submit to a division giving her husband the lion’s share of the tangible property in return for which he will agree to pay her a fixed income for life; It is a recognition by the wife that the husband is better able to manage the properties than she. Such contracts when they are freely and understandingly made and are fair and equitable in their terms are enforceable. The effect of the holding of the trial court in this action would be to discourage any wife in the future from entering into such a contract as this. We do not care to do that.
In McKinney v. McKinney, 152 Kan. 372, 103 P. 2d 793, we approved the rule announced in Petty v. Petty, supra. We said:
“The trouble with the contention is that there is a fundamental difference between the power of the court, in the absence of agreement between the parties, to enter such a judgment in such a case, and its power to approve a contract, freely made, without fraud, between the parties and to incorporate its obligations in the judgment.”
The claim in probate court was based on the contract, not on the judgment, and the wife was entitled to rely upon the contract.
The executor makes a point of the fact that the claim is for $30,000 or that $40,000 be set aside in the administration of the estate and argues that such an allowance would result in keeping the estate open for an indefinite time. A situation such as this was contemplated by the legislature when it enacted G. S. 1949, 59-2240. That section provides as follows:
“The court may allow demands, which are payable at a future day, at the then present value thereof, or the court may order the executor or administrator to retain in his hands sufficient funds to satisfy the same upon maturity; or if the heirs, devisees, or legatees offer to give bond to a creditor for the payment of his demand according to the terms thereof, the court may order such bond to be given in satisfaction of such demand.”
The prayer of the claim was in conformity with that statute.
The judgment of the trial court is reversed with directions to overrule the defendant’s demurrer. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is an appeal by the state from an order sustaining defendant’s motion to quash the second amended information in a criminal case. The information reads:
“I, Lee Hornbaker, the undersigned County Attorney of said county in the name, and by the authority, and on behalf of the State of Kansas, come now here, and give the Court to understand and be informed, that on or about the 29th day of October, A. D. 1950, in said county of Geary and State of Kansas, one Gene Luther Champ did then and there UNLAWFULLY and FELONIOUSLY and with culpable negligence drive and operate a motor vehicle, to wit, a 1950 Ford Truck and attached semitrailer, upon the public highways of the State of Kansas, to wit, U. S. Highway 77, in a careless and reckless manner and in such a manner as to indicate a wilful, wanton and negligent disregard of the safety of other persons on said highway. That said culpable negligence and said wilful, wanton and negligent disregard of the safety of other persons on said highway consisted of driving and continuing to drive said vehicle aforesaid when the said Gene Luther Champ was and knew he was fatigued, sleepy and tired and while continuing to drive in said condition the said Gene Luther Champ fell asleep and allowed the said vehicle to cross the center line of said highway, contrary to the provisions of G. S. 1949, 8-537, and into the path of a vehicle driven by one Clarence Webber whereby the vehicle driven by the said Clarence Webber was then and there struck with great force and violence and the said Clarence Webber as a result thereof received wounds, bruises and contusions which caused his death, the death of the said Clarence Webber being caused by the act, procurement and culpable negligence of the said Gene Luther Champ as aforedescribed.
“Contrary to the form of tire statute in such case made and provided, and against the peace and dignity of the State of Kansas.”
Defendant moved to quash-the information:
“. . . for the reason that it fails to state a crime as defined in the Statutes of Kansas, is too indefinite and uncertain, and does not inform the defendant as to what he is called upon to plead to or defend against.”
After a hearing the court found:
“. . . that the second amended information as filed herein by the State of Kansas fails to state a crime as defined in the statutes of the State of Kansas,” and sustained the motion.
The state, through its attorney, promptly gave notice to the court that it reserved the question and that if intended to appeal, and on the same date served and filed the notice of appeal.
In this court counsel for appellant advise us that the statute under which defendant was charged is G. S. 1949, 21-420. All reference ■to statutes herein referred to are General Statutes of 1949 unless otherwise noted. The sections of the chapter and article preceding the one here relied upon pertain to murder in the first degree, murder in the second degree and manslaughter in the first, second and third degrees. The statute in question reads:
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” (21-420.)
In this case counsel argue at length- and cite authorities as to what constitutes manslaughter at the common law. Each side cites and quotes excerpts from the opinion, at times without reference to the context, of State v. Custer, 129 Kan. 381, 282 Pac. 1071. The eminent jurist who wrote the opinion in that case made an exhaustive research of what constituted manslaughter at the common law at the time the section here in question was first adopted in this' state in 1855 and quoted from many authorities prior to and since that date. The result of all that study was embodied as the controlling rule in this state in the fourth paragraph of the syllabus, which reads:
“If death results from unlawful conduct amounting to misdemeanor denounced by statute for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would be manslaughter at common law.”
This same conclusion was reached by this court in State v. Spohr, 171 Kan. 129, at page 132, 230 P. 2d 1013. Since the decision in State v. Custer, supra, it is no longer an open question in this state as to what constitutes manslaughter at common law.
While there is some superfluous language in the information above quoted, such language does not make the information bad. On that point section 62-1011, so far as here pertinent, reads:
“No indictment or information may be quashed or set aside for any of the following defects: . . .
“Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. Nor,
“Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
Guided by our holding in State v. Custer, supra, and by the statute above mentioned we think it cannot be said that the information fails to state a crime as defined in our statutes.
We should note, however, that the pertinent portion of our statute (8-537) reads: “Upon all roadways of sufficient width a vehicle' shall be driven upon the right half of the roadway,” except under circumstances not pertinent here; and this is made a misdemeanor by our statute (8-5,125). Also, our statute (8-529) in part reads:
“When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide,” providing the penalty.
Also, our statute (8-531) defines and prescribes a penalty for reckless driving. Our cases have consistently held that where one is prosecuted for manslaughter in the fourth degree under 21-420 the evidence may be such that the court is required to give an instruction upon negligent homicide under 8-529, or on reckless driving under 8-531. State v. Gloyd, 148 Kan. 706, syl. 4, 84 P. 2d 966; State v. Phelps, 151 Kan. 199, 206, 97 P. 2d 1105 (see same case on second appeal, 153 Kan. 337, 110 P. 2d 755; State v. Goetz, 171 Kan. 703, 706, 237 P. 2d 246.
We think there is nothing seriously wrong with this information and that, depending upon the evidence, the jury would be warranted in returning a verdict against the defendant of fourth-degree manslaughter under 21-420, or negligent homicide under 8-529, or reckless driving under 8-531.
Counsel for appellee make much of the allegation in the information of the defendant driving, and continuing to drive, his vehicle when he knew he was fatigued, sleepy, tired, and fell asleep and allowed his vehicle to cross the center line of the highway. The contention is that defendant is not responsible for what he did while he was in that condition, and that he could not do an offense unless he acted knowingly and intelligently. This point is not well taken. Negligence is seldom, if ever, intentional. A similar question was argued in the case of Richardson v. Commonwealth, 192 Va. 55, 63 S. E. 2d 731, where Chief Justice Hudgins, speaking for the court, used this language:
“The number of deaths resulting from the operation of motor vehicles on the highways has increased to such an alarming extent that the legislature in a number of States haye made a simple act of negligence which results in serious bodily injury, or death, a crime. Such statutes have been adopted in California, People v. Warner, 27 Cal. App. 2d 190, 80 P. 2d 737, Kansas, sec. 8-529, G. S. 1947 Sup., and Michigan [Comp. Laws of Michigan (1929) secs. 16743-16745]; People v. Campbell, 237 Mich. 424, 212 N. W. 97.”
When our legislature laid down the rule stated in 8-537, above quoted, and made its violation a penalty, and created the offense of negligent homicide, it no longer left open to defendant as a defense that he negligently permitted himself to get on the other side of the road and cause the death of an approaching driver.
From what we have said it necessarily follows that the judgment of. the trial court must be reversed with directions to overrule defendant’s motion .to quash the information and to proceed accordingly.
It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was tried on an information containing six counts charging (1) Forgery of a check for $45, dated August 28, 1948, purportedly drawn by Harry Cooley, payable to Tod Moore. (2) Uttering the check on August 28, 1948, to J. P. Gothard with intent to cheat and defraud Gothard and C. M. Crismas. (3) Forgery of a check for $45, of the same date and tenor as in count 1. (4) Uttering the check on August 28, 1948, to Carl Lauffer with intent to cheat and defraud Lauffer and Neil Winn. (5) Forgery of a check for $45, of the same date and tenor as in count 1. (6) Uttering the check to Kenneth Parker with intent to cheat Parker and J. F. Erown. Defendant was convicted of counts 2, 4 and 6, and his post-trial motions being denied, he appealed to this court. We here note that the abstract contains many statements that the transcript of the record is inaccurate or incomplete, but apparently no effort was made to have it corrected as provided by statute (see G. S. 1949, 20-911; 60-3311). The abstract, counter-abstract and supplements thereto include statements of events and documents which concededly are not part of the record. These latter matters must be ignored. We have limited our statements to the record as abstracted.
The abstracts disclose that the above named Erown made a complaint on September 25, 1948, against the defendant, a warrant was issued and on November 17, 1948, he was arrested in Wichita. Without detailing the facts, it may be said defendant was not returned to Elk County. Nothing further occurred until March 19, 1949, when an amended warrant, charging the six offenses above noted, was filed, the defendant was arrested, a preliminary hearing was had and defendant was released on bond. On April 16, 1949, an information charging the six offenses was filed. It is here noted that terms of court in Elk County commence on the first Mondays in January and May and the third Monday in September of each year (G. S. 1949, 20-1013). No trial was had at the May term. At the September term and on October 4, 1949, on motion of the county attorney the case was dismissed without prejudice to a future prosecution. At some undisclosed date thereafter but prior to August 1, 1950, defendant commenced a civil suit for damages against Gothard and others. On August 21, 1950, defendant was rearrested, a preliminary hearing was had, defendant was released on bond and on August 23, 1950, an information was filed. No trial was had at the September term. Defendant was tried at the January, 1951, term and on February 23, 1951, the jury returned a verdict of guilty against him on the second, fourth and sixth counts, and reported it was unable to agree on the other counts. A motion for a new trial was filed, and on March 10, 1951, it was heard and denied and the defendant sentenced. In due time defendant served his notice of appeal. We shall discuss his specifications of error insofar as is necessary for determining the appeal.
We take up first defendant’s contention that the trial court erred in denying his motion that he be discharged because he had been denied a speedy trial under section 10 of the Bill of Rights of our State Constitution, and because he was not brought to trial before the end of the third term after the first information was filed against him as provided in G. S. 1949, 62-1432. The substance of his argument is that the first information was filed against him on April 16, 1949, and that he was not tried on the second information until in February, 1951, and therefore was deprived of a speedy trial. In support he directs attention to In re Trull, 133 Kan. 165, 298 Pac. 775, where Trull was discharged in a habeas corpus proceeding wherein it appeared that he was arrested and given a preliminary hearing on September 21, 1928, but no information was filed until January 20,1931. It is noticed here however that the first prosecution of defendant was abated and a second prosecution commenced at a later date, a matter later considered. We think the Trull case is not decisive here but point out that it was said therein:
“This court has repeatedly held, under the statute, that only the terms of court during which the information is actually on file are considered in determining when the defendant is entitled to a discharge. (State v. Braden, 78 Kan. 576, 96 Pac. 840; State v. Patterson, 126 Kan. 770, 271 Pac. 390; State v. Fry, 131 Kan. 277, 291 Pac. 782.)” (1. c. 167.)
Pointing out that the first information was filed against him on April 16, 1949, that he was not tried at the May term, that the case was dismissed at the September, 1949, term, that the January, 1950, term passed, that he was re-arrested during the May, 1950, term and after a preliminary hearing a new complaint was filed for the identical offenses covered by the April, 1949, information, that he was not tried at the May or September terms of 1950, defendant contends that he is entitled to his discharge under G. S. 1949, 62-1432. It is here observed that the record as abstracted, as distinguished from statements outside the record made in the briefs, does not disclose on whose application any of the several continuances were had. If defendant’s premise were sound, his conclusion might be correct. (See cases set forth in West’s Kan. Dig., Criminal Law, § 576, Hatcher’s Kan. Dig., Criminal Law, § 79.) In support of his contention that the number of terms must be counted from the date the first information was filed and that the dismissal of the first case was ineffectual to extend the time in which he must have been tried, defendant relies almost wholly on Brooks, et al., v. People, 88 Ill. 327, where it was held that under a statute requiring trial within a limited time, a trial within that time could not be circumvented by the dismissal of the indictment and a prosecution had on a second indictment for the same offense, a holding followed in later Illinois cases.
However, in State v. Wigger, 196 Mo. 90, 93 S. W. 390, in a case quite like the one before us, and where a statute almost identical with ours (G. S. 1949, 62-1432) was relied on, it was held:
“When the prosecuting attorney dismisses an information previously filed and files a new information, in determining whether defendant is entitled to his discharge on the ground of three continuances, the terms of court which lapse under the prior information must be excluded.” (Syl. f 1.)
The last decision was followed in the later case of State v. Schyhart, (Mo.) 199 S. W. 205.
Although not arising under statutes similar to those of this state, in the following cases it was held that an accused was not denied a speedy trial because the indictment or information on which he was tried, superseded a preceding one which had passed a term without trial. See State v. Bige, 198 Iowa, 573, 198 N. W. 510; People v. Romero, 13 Cal. App. 2d 667, 57 P. 2d 557, and In re Rosenberg, 23 Cal. App. 2d 265, 72 P. 2d 559. See, also, 22 C. J. S. (Criminal Law, § 468) p. 718.
Whatever may be the rule in other jurisdictions, this court long ago decided that the entering of a nolle prosequi with consent of the trial court did not prejudice a fresh prosecution on a new information charging the identical offense set forth in the prior in formation. See The State v. Rust, 31 Kan. 509, 3 Pac. 428, and cases cited. In The State v. Hart, 33 Kan. 218, 6 Pac. 288, it was held:
“And after a new trial has been granted on the motion of the defendant in a criminal ease, the attorney for the state, with the consent of the court, may enter a nolle prosequi without prejudice to a future prosecution, and thereafter the defendant may be put upon his trial and convicted upon a new information charging the identical offens.e set forth in the prior information.” (Syl. f 3.)
In The State v. Child, 44 Kan. 420, 24 Pac. 952, it was held:
“The mere entry of a nolle prosequi, or the dismissal of an indictment, with the consent of the court, is no bar to the filing of another indictment or information for the same offense.
“Where a prosecution fails, on account of a defective indictment or information, the time during which it is pending is not to be computed as a part of the time limited for prosecution, and the accused, after the nolle or dismissal of an indictment or information, may, within the time prescribed, be again proceeded against for the same offense.” (Syl. fjf 1, 2.)
In our opinion the trial court did not err in denying defendant’s motion that he be discharged.
Defendant contends that the trial court erred in denying his motion for a new trial. We shall not discuss at length each contention made. As has been indicated, the information charged the forgery and uttering of three checks each for $45, each check being drawn on the same bank with the same maker and payee, and the proof showed that all three checks were presented to and received by other persons in Howard, Kansas, during a short period of time on the night of August 28, 1948. In its proof with respect to the uttering of the checks the state’s evidence tended to show that one person uttered all three of the checks, and that defendant was that person. Gothard, who cashed one check, testified at length, identifying defendant as the person who gave him the check. On cross-examination he was asked whether after the first prosecution was dismissed, Rowland had not filed a civil suit against the witness and others for damages, the state objected, defendant urged that the question went to the witness’ credibility, and thereafter the trial court sustained the state’s objection. Lauffer, who cashed the check involved in counts 3 and 4, also testified at length and identified the defendant as the one who presented the check. On cross-examination he was asked if he had any interest in the outcome of the prosecution and the state’s objection to the question was sustained.
It need not be stated at length that identity of the defendant as the person who cashed the checks was the most important element of the state’s proof in connection with counts 2, 4 and 6, of the information, and if it failed there the defendant could not be convicted, and it was therefore highly important to the defendant that witnesses testifying as to his identity be thoroughly tested under recognized rules of procedure. While our decisions recognize that the extent to which cross-examination of a-witness in an action may be allowed is in the discretion of the trial court, it is also recognized that a more searching examination is to be allowed of a witness who is a party principal, and that where the determination of the main issue of fact must largely depend upon the credence to be given the testimony of a litigant witness a wider range of cross-examination should be allowed than is usually permitted in the cross-examination of witnesses in general. (See The State v. Pugh, 75 Kan. 792, 90 Pac. 242; Zinn v. Updegraff, 113 Kan. 25, 37, 213 Pac. 816; Tawzer v. McAdam, 134 Kan. 596, 7 P. 2d 516; Wood v. McKeever, 141 Kan. 323, 327, 41 P. 2d 989; and Kelly v. Meyer, 156 Kan. 429, 134 P. 2d 658.) In a rather late criminal action, State v. Collins, 162 Kan. 34, 174 P. 2d 126, the rule was stated:
“The general rule is that a witness may be cross-examined for the purpose of disclosing his interest in the action, his hostile feeling, and the extent thereof, in order that the jury may determine the weight and credibility it will accord all, or any portion, of his testimony.” (Syl. ¶ 4.)
See, also, 70 C. J. (Witnesses, § 1165) p. 958.
In the instant case, the trial court, by its ruling, cut off completely the right of the defendant to cross-examine those witnesses who had been defrauded and whose testimony was absolutely necessary to a conviction, as to their being parties to tire civil action brought by him against them and interested in the outcome of the criminal action. In our opinion the refusal to permit the cross-examination was error, and that it was prejudicial to the defendant' cannot be gainsaid. On this ground defendant is entitled to a new trial.
We note also that defendant contends the evidence was insufficient to sustain the verdict of the jury in that only one expert witness testified with respect to the forged signatures on the purported maker of the check, while under G. S. 1949, 62-1427, at least three such witnesses are required. The abstracts do not contain the evidence of any so-called handwriting experts, and if there were any, we do not know what their testimony tended to prove. However, it does appear that Harry Cooley, whose name had been placed on the checks as the maker thereof testified that the signature was not his. In State v. Maxwell, 151 Kan. 951, 963, 102 P. 2d 109, a similar contention was made, considered and denied, reference being made to State v. Leatherwood, 129 Kan. 686, 284 Pac. 402, where it was held:
“The statute (R. S. 62-1427) that when persons of skill, or experts, be called to testify as to the genuinéness of a note three witnesses shall be required to prove the fact does not apply when there is other evidence as to the genuineness of the instrument than that of the testimony of the experts.” (Syl. f 1.)
Defendant’s contention that the trial court’s instruction to the jury with reference to his plea of abili was erroneous has been examined, and without discussion, is found to be without merit.
Defendant’s contention that the trial court erred in permitting the state to offer certain evidence in rebuttal has been examined. We note only that it was competent insofar as it tended to rebut defendant’s claim of alibi. As abstracted, it is not clear that the testimony of Crismas as to a conversation with defendant in Severy, Kansas, a city about thirteen miles north of Howard, where the checks were passed, and purportedly had a week after the checks had been passed was proper as rebuttal testimony, although it may have been admissible in chief to show guilty knowledge.
Defendant’s remaining contentions concerning the composition of the jury, misconduct of the jury, that the verdict was not supported by the evidence, and that he was entitled to a continuance, have been examined and found either without merit or unnecessary to decide, in view of our conclusion he is entitled to a new trial.
The judgment of the trial court is reversed and set aside and a new trial ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff appeals from an adverse judgment rendered in an action to recover damages for personal injuries.
For the purpose of convenience and clarity we shall continue to refer to the parties as plaintiff and defendant.
This is the second chapter of this case on appeal. The first appeal was perfected by the defendant before trial and involved legal questions presented by a challenge of pleadings. (Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219.)
Plaintiff was not an employee of the defendant but an employee of the principal contractor, Ebasco Services, Incorporated, which had a contract for the construction of a building where plaintiff was injured. Defendant, The Martin K. Eby Construction Com pany, Incorporated, was a subcontractor engaged to do the brick work on the building. Briefly stated plaintiff, in substance, alleged a brick which was negligently permitted to fall from defendant’s scaffold struck him on the head while he was working under the scaffold, having been directed by his employer to make a trench to drain some water away which had collected near the wall of the building. Defendant’s answer contained a general denial of the alleged negligence and further pleaded the defenses of unavoidable accident and contributory negligence of the plaintiff. These were the issues on which the case was tried and on them the court instructed the jury.
In addition to a general verdict for defendant the jury answered special questions submitted at defendant’s request. All questions plaintiff raises here, except one involving instructions to the jury, pertain to the special answers and to rulings of the trial court concerning them. Plaintiff contends he is entitled to a new trial. The special findings of the jury were:
“1. Was Davison’s injuries the result of an unavoidable accident? A. Yes.
“2. If you find for the plaintiff state specifically the act or acts of negligence on the part of the defendant, Eby. A.
“3. Was Davison guilty of any negligence which contributed to the accident? A. Yes.
“4. If you answer number 3 in the affirmative, state what the acts of negligence were? A. (Check mark)
“5. If you find that Davison was struck on the head by a brick or bricks which had fallen from defendant Eby’s scaffold state:
“(A) From what portion of the scaffold did said brick or bricks fall with reference, to the middle and west end of the scaffold? A. Not clear from evidence.
“(B) Did the brick or bricks fall from the inside of the scaffold nearest the wall, or from the outside which was away from the wall? A. Not clear from evidence.
“6. Could Davison have safely performed his work without going under defendant’s scaffold? A. Depends on lay of land.
“7. Did Davison know that working under a scaffold was a place of danger? A. Yes.
“8. If you find that Davison was struck on the head with a brick which had fallen from defendant, Eby’s scaffold, state approximately Davison’s position with reference to the brick wall and the scaffold at the time he was struck? A. (check mark)
“9. If you find for plaintiff, please itemize damage as follows:
“(A) Future medical expenses
“(B) Pain and suffering
“(C) Permanent injuries
“(D) Temporary injuries”
We shall first consider the complaint concerning the giving of any instruction on the subject of contributory negligence. We probably would be justified in merely stating the complaint is without merit but we shall pursue the contention. In view of what transpired on the hearing of the motion for a new trial, which will appear presently, it is unnecessary to narrate the evidence for the purpose of determining whether any instruction on contributory negligence was proper.
Plaintiff contends that in view of our ruling on the previous appeal contributory negligence was completely eliminated from the case. He, therefore, contends no instruction should have been given on the subject. The contention is not good. The real question presented on that point in the first appeal was whether the petition disclosed on its face plaintiff was guilty of contributory negligence. We said it did not. We, however, did not say it was impossible for plaintiff to be guilty of any acts of contributory negligence. That, of course, was a matter of proof which could be developed only in the trial.
It appears counsel for plaintiff did at first object to any instruction on the subject of contributory negligence but later offered suggestions to amend instructions on that subject which were under consideration in order to bring them into harmony with their own interpretation of the statement contained in our former opinion. An examination of suggestions of counsel for the respective parties relative to instructions on that subject and an examination of the instructions finally given, after several amendments thereof, lead us to conclude there was nothing seriously wrong with them in the light of the issues joined and the evidence adduced.
Counsel for defendant also insist the instructions as finally drafted were not objected to. The record on the hearing of the motion for a new trial discloses counsel for plaintiff admitted there was no objection to the instructions on contributory negligence or to the one on unavoidable accident and that they had become the law of the case.
We turn now to the special findings of the jury previously mentioned.
In the absence of the regular trial judge, the Honorable Clair E. Robb, one of the other district judges of Sedgwick county, the Honorable George Austin Brown, received the verdict of the jury. Counsel for plaintiff requested that the jury be required to answer question No. 4 and that question No. 6 should be answered, “yes or no.” The request was denied and on the argument of the motion for a new trial the regular trial judge approved the verdict.
In the first place plaintiff did not submit question No. 4, 6 or any other question. He did not adopt those submitted by defendant. He was not entitled as a matter of right to insist that questions which he did not submit should be answered. Under these circumstances the matter rested in the discretion of the trial court. (Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552.)
In the next place on the hearing of the motion for a new trial counsel for plaintiff also argued the effect of Judge Brown s refusal to make the jury answer question No. 4 was to eliminate answer No. 3. Assuming, without deciding, the correctness of that contention it appears the trial judge adopted that contention and eliminated answer No. 3 from his consideration. Under these circumstances plaintiff is not in a position to claim the refusal to have question No. 4 answered constituted ground for a new trial.
A review of the record leaves us in as much doubt as the jury was with respect to a proper answer to question No. 6. At any rate that question also pertained only to plaintiff’s contributory negligence and, as previously stated, the court was not obliged to sustain plaintiff’s request to have it answered differently.
Plaintiff argues findings 1 and 3 are not supported by the evidence. We have already indicated the trial court eliminated finding No. 3. at plaintiff’s request. Furthermore we find nothing in the record to indicate plaintiff filed a motion to set aside finding No. 1 or any of the other findings on the ground they were unsupported by evidence. Moreover, as previously indicated, counsel for plaintiff admitted on the hearing of the motion for new trial that no objection had been made to the instruction relative to “unavoidable accident” and that it had become the law of the case.
Plaintiff’s counsel argue findings 1 and 3 are entirely inconsistent and compel the granting of a new trial. As previously indicated we need not further consider finding No. 3. Findings 1 and 2, of course, are in complete harmony with each other and with the general verdict for defendant. Plaintiff’s counsel further argue findings 1, 3 and 5 should be interpreted as indicating the jury believed plaintiff was struck by a brick which fell from defendant’s scaffold and that failure of an explanation by defendant that the brick did not fall due to its negligence raises the presumption defendant was negligent.
The trial court refused to adopt that theory and we think properly. In the first place finding No. 5, as worded, cannot be interpreted as a positive finding plaintiff was struck with a brick. In the second place finding No. 3 has been eliminated. In the third place, it was the province of the jury to determine whether defendant was negligent under the circumstances and it determined by its general verdict and specifically by finding No. 2 defendant was not negligent. Under the instructions which became the law of the case the jury determined the injuries were the result of an unavoidable accident. (Finding No. 1.) It is clear the special findings do not compel the overthrowing of the general verdict and plaintiff's counsel do not contend they do. Although there may be some slight apparent inconsistency among the special findings themselves the inconsistency does not require the granting of a new trial.
Ehminating finding No. 3 there is no inconsistency in the findings themselves which precludes a general verdict for defendant on the theory of an unavoidable accident. As already stated the jury determined defendant was not negligent and also that the injuries were the result of an unavoidable accident.
In the light of what has been said heretofore we need not treat the further question raised by plaintiff whether the findings indicate such a disregard of the evidence and the instructions as to require a new trial.
Counsel for the respective parties engage in considerable discussion concerning a prospective witness who finally was not used and the alleged reasons therefor. The point is not included in the questions which plaintiff states are raised in his appeal. Furthermore it is not sufficiently presented in this record to justify further comment thereon and we refrain from doing so.
A studious examination of the entire record leaves no doubt in our minds the jury believed plaintiff was not entitled to a verdict. The trial court was satisfied with the verdict. We think this court would not be justified in disturbing it.
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The opinion of the court was delivered by
Wedell, J.:
This appeal grows out of a claim against the estate of Arthur Paul Hilliard, deceased. The appeal is from a judgment for the claimant. A former appeal by the same party was dismissed for want of an appealable order. (In re Estate of Hilliard, 170 Kan. 617, 228 P. 2d 536.)
Appellee, Jennie M. Hilliard, is the widow of the decedent. Appellant, Evelyn Nielson, is the daughter of decedent by a previous marriage. Appellee sought the specific performance of an oral contract alleged to have been made and entered into by and between her son by a previous marriage, Roy Schultheiss, and the decedent for appellee’s benefit.
The substance of appellee’s claim was that shortly after her marriage to the decedent in July, 1931, her son entered into an oral contract with the decedent whereby decedent agreed to execute a will leaving his farm and other property to appellee if the son would remain on the farm, help to operate it and improve the dwelling house thereon. Although decedent frequently stated he would execute such a will he died without having done so.
Appellant’s first contention is the petition of appellee should have been dismissed. The argument appears to be based on a number of theories the principal one being that since it was held Roy Schultheiss, one of the contracting parties, was not the real party in interest and could not recover on the contract, appellee likewise could not recover thereon.
The district court, as the probate court, had before it two claims. One was the claim of appellee’s son, which had been filed in the probate court and was disallowed. The son appealed to the district court with the same result. It also had the claim of the widow on the contract. That claim was allowed in the probate court and in the district court. The district court disallowed the son s claim on the theory he was not the real party in interest and held the widow was the real party in interest. We think the judgment of the district court was right as to both claims. The widow was the third party for whose benefit the contracting parties expressly entered into the agreement. Although the contract may have been intended indirectly to aid appellee’s son its primary purpose was to benefit appellee. A contract fairly and equitably entered into by parties for the benefit of a third party is ordinarily enforceable by such third party. (Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 362, 133 P. 2d 574; French v. French, 161 Kan. 327, 330, 167 P. 2d 305.) Nothing is called to our attention in the instant case which prevents the application of this well-established doctrine.
Appellant next argues the judgment of the probate and district courts denying the claim of appellee’s son renders the claim by appellee res judicata. The contention lacks merit.
Appellant contends the evidence of appellee was insufficient to establish the alleged agreement. It would serve no useful purpose to narrate the testimony. A careful examination thereof convinces us the evidence was sufficiently clear, satisfactory and convincing to establish the contract.
Appellant says the judgment is inequitable in that appellee as decedent’s widow was entitled to her homestead rights and her statutory allowances without a decree of specific performance of the entire contract. That is no answer. Appellee was entitled to one half of decedent’s property as a matter of law. The decedent was not legally obliged to leave his daughter anything. In passing it also may be said there was positive evidence he did not intend to leave his daughter anything and that he entertained definite reasons therefor. That was his prerogative.
Appellant also argues the claim is barred by the statute of limitation and laches. We cannot agree. Appellee’s cause of action did not accrue at the time the contract was negotiated. It accrued when it was discovered, after decedent’s death, that the will decedent had agreed to make in appellee’s favor had not been executed. The claim was not affected by statutes of limitation pertaining to an assertion of rights under a contract relative to land, as contended by appellant, but was governed by the nonclaim statute which prescribes the time within which a claim may be asserted against a decedent’s estate. (G. S. 1949, 59-2239.) It is not contended the claim was not filed within the time therein stated.
Appellant asserts the alleged contract was not in writing and violates the statute of frauds. (G. S. 1949, 33-106.) This contract had been fully performed by the son for a period of approximately eighteen years. Full performance of a contract takes it out of the inhibitions of the statute. (Meador v. Manlove, 97 Kan. 706, 712, 156 Pac. 731; Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318; Smith v. Nyburg, 136 Kan. 572, 576, 16 P. 2d 493; Eastwood v. Eastwood, 167 Kan. 471, 476, 207 P. 2d 393.)
Appellant insists appellee had an adequate remedy at law and that specific performance should have been denied. She asserts appellee’s son could have filed a claim to compensate him in money. We previously indicated he was not the real party in interest and had no personal remedy whatever thereunder. The contract was not made for his benefit but for the benefit of his mother. It is she who seeks to have the agreement enforced. Furthermore it rather clearly appears compensation in money for the eighteen years of service probably would exceed the value of the estate by a considerable amount. There was no inequity in the enforcement of the contract as made. Under these circumstances the ordinary reason for refusing a decree of specific performance failed and the contract properly was ordered performed. (Hoppas v. Bremer, 114 Kan. 609, 220 Pac. 251; Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571; In re Estate of Henry, 156 Kan. 788, 137 P. 2d 222.)
Appellant contends appellee made her election to take under the law instead of under the contract when she filed a petition to have the homestead and a widow’s allowance set aside to her and that such action bars her present claim. The contention is not good. G. S. 1949, 59-2235 expressly provides the surviving spouse, after the inventory and appraisement have been filed, may petition the court to set apart the homestead and personal property allowed in G. S. 1949, 59-403 and that such property shall be delivered to the persons entitled thereto and shall not be treated as assets in the custody of the executor or administrator but that title to the homestead shall be included in the final decree of distribution. Appellee was entitled to the homestead and the widow’s allowance as a matter of law. (G. S. 1949, 59-401; 59-403.) Our legislature has clearly indicated its intention to preserve the homestead and a widow’s allowance to her. In this state a widow is not even held to have waived her right to the homestead and a widow’s allowance although she elects to take under a will unless it clearly appears from the will that the provisions therein made for such spouse were intended to be in lieu of such rights. (G. S. 1949, 59-404.) Appellee’s claim to the homestead and a widow’s allowance was not contrary to her rights under the contract. Proof of the contract did not defeat her rights to the homestead and a widow’s allowance. It merely gave her rights in addition to those expressly granted her by law. It is the inconsistency of demands which makes the election of one remedial right an estoppel against the assertion of the other and not the fact the forms of action are different. In order to make actions inconsistent one must allege what the other denies, or the allegations in one must necessarily repudiate or be repugnant to the other. (Taylor v. Robertson Petroleum Co., 156 Kan 822, 137 P. 2d 150; Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 678, 157 P. 2d 805; Jerecki Manufacturing Co. v. Shields, 169 Kan. 640, 642, 220 P. 2d 144.)
Appellant argues the district court erred in changing that part of the journal entry which pertained to the claim of the son after the term in which that claim was dismissed. The court in nowise altered the judgment. It merely inserted in the journal entry its reasons for dismissing the son’s claim which, in substance, was that appellant was not the real party in interest and had no right to maintain the action. This insertion in the journal entry in nowise altered or modified the judgment and it did not constitute error. (Perkins v. Ashmore, 144 Kan. 540, 61 P. 2d 888.) Moreover the claim of the son is not here for review.
In view of the subjects previously treated it is unnecessary to comment further on the overruling of the motion for a new trial. The district court committed no trial errors and its judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for declaratory judgment wherein the plaintiffs seek an adjudication of their rights under the provisions of a corporate charter. Judgment was for the defendants.
We are not favored with an abstract of the pleadings. We gather, however, from reading the statements that there was a petition and a demurrer to the petition. By agreement a general denial was entered for defendants and the court postponed a decision on defendants’ demurrer until after presentation of the plaintiffs’ evidence. At the conclusion of that the court sustained the defendants’ demurrer to it and entered judgment for defendants.
Plaintiffs state that they appealed after an unsuccessful motion for a new trial. The specifications of error are that the court erred in sustaining defendants’ demurrer; in its construction of the charter and striking certain testimony from the record. We are not favored with a copy of the motion for a new trial, neither does the journal entry make any reference to the action of the court on a motion for a new trial. The notice of appeal is from the judgment and from the action of the trial court in overruling the motion for a new trial.
Actually the state of the record makes it difficult for us to understand of what the plaintiffs complain. Counsel treat the action as if the declaratory judgment statute provided for the parties to submit an abstract question of law to the court a great deal like they would write a letter to a lawyer. That is not the way we have treated the declaratory judgment statute in the past. It is G. S. 1949, 60-3127. It provides as follows:
“In cases o£ actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, other instruments of writing, statutes, municipal ordinances, and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.”
In applying that statute we have held that an actual controversy must exist between the parties. We have also held that an action under the declaratory judgment act must be in some of the recognized forms. (See Witschmer v. City of Atchison, 154 Kan. 212, 117 P. 2d 570; also Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862.) We are unable from the record before us to state just what was the form of this action. Appellants simply say it was for declaratory judgment and that they seek an adjudication; that Mr. and Mrs. Ray had no right to sell their shares held jointly in both their names to Clifford Brisbois without first offering that stock for sale to Mr. and Mrs. Martin at the price bid by Brisbois. What the form of the action was we do not know.
Plaintiffs ask us to reverse the court’s action in sustaining defendants’ demurrer to their evidence. They do not, however, bring all the evidence here. The parties seem to know what the situation was so well they evidently did not think it was necessary to inform this court of what it was. Two of their specifications of error involve actions of the court in striking certain evidence from the record. They do not furnish us their motion for a new trial, however, so we are unable to say whether they raised that on the motion for a new trial. The controversy arose over the construction to be given the charter provision of a corporation and certain actions of two of the stockholders. The corporation was formed by Mr. and Mrs. Martin, Mr. and Mrs. Brisbois and Mr. and Mrs. William D. Ray. When it was formed the Martins owned 200 shares, the Rays and Brisbois each owned a 100 shares. There is a provision in the charter of the corporation as follows:
“Existing shareholders shall have the right to purchase and acquire the stock of a selling stockholder before sale to a nonstockholder at the price bid by such nonstockholder.”
This controversy arose because Mrs. Martin learned inadvertently, so this record states, that the Rays were about to sell their stock to Mr. Brisbois. They make the point that Mr. Brisbois is not a stockholder of the corporation since the stock is owned by Cliff Brisbois and Cleo D. Brisbois or survivor — hence they argue the limitation in the charter applies and the Rays could not sell their stock until they had offered it to Mrs. Martin.
From what we can learn from the record, we have concluded that the judgment must be affirmed under the rule that we will not set aside a judgment of the trial court unless it affirmatively appears there has been an error that affects substantial rights. (See Jones v. Crowell, 167 Kan. 415, 207 P. 2d 435.) We can discern no such error in this record.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin to recover possession of an automobile. Judgment was rendered for plaintiffs and defendant appeals. In a previous appeal it was held that the defendant could not join a third party as a defendant and seek to recover against it any damages he might sustain if the plaintiffs prevailed against him (see Poteet v. Simmons, 171 Kan. 86, 229 P. 2d 747).
Although the abstract does not disclose when the pleadings were filed, apparently after the decision above was rendered, plaintiffs filed theh second amended petition, and defendant adopted as his answer thereto his answer to the amended petition. A trial by jury was waived. The trial court, after hearing evidence, made findings of fact and conclusions of law and rendered judgment for the plaintiffs.
The findings made by the trial court cover the following: On May 4, 1949, one Jay Brown purchased from the McCann Motor Company of Coffeyville, Kan., a new Mercury automobile and received a bill of sale for it. On May 7, 1949, for some reason not shown, the McCann Motor Company delivered to Brown another bill of sale for the same car. At an undisclosed date early in May, 1949, Brown made an application for a Kansas certificate of title, which was later issued on June 8, 1949. In the meantime Brown took the automobile to Texas and on May 17, 1949, filed with the tax collector of Dallas County an importer’s certificate and an application for a Texas certificate of title, using the bill of sale from McCann Motor Company as evidence of his ownership. On June 1, 1949, Brown sold the automobile to the plaintiff Poteet, the transaction being handled through United Auto Sales of Dallas, Texas, to facilitate financing arrangements by Poteet. On that date the automobile had a Kansas license plate on it, but Poteet did not see it. Poteet paid a full consideration for the transfer to him and got possession of the car. On June 23, 1949, a Texas certificate of title was issued to Brown. On June 27, 1949, Brown assigned the certificate to United Auto Sales of Dallas and on the same day it executed an assignment to Poteet who applied for a Texas certificate of title which was ultimately issued to him on July 19, 1949. However, on July 6, 1949, the automobile was stolen from Poteet’s residence in Dallas, Texas, presumably by Brown, who, on July 7, 1949, sold it to McCandless & Dunn, partners engaged in the used car business in Wichita, Kan., and was paid $1,900 for it. On July 7, 1949, McCandless & Dunn sold and delivered the automobile to defendant Simmons. On July 12, 1949, Brown assigned his Kansas certificate of title to Simmons and Simmons applied for a Kansas certificate which was issued to him on July 27, 1949. On August 4, 1949, the plaintiff insurance company paid Poteet the sum of $2,095 pursuant to a policy of theft insurance and, at some undisclosed date, the company and Poteet commenced this action in replevin. The trial court found that the automobile could not be returned to plaintiffs and that its reasonable market value on July 7, 1949, was $2,500. It is noted that the record does not disclose why the automobile could not be returned, and also that there is no complaint of the finding. As matters of law the trial court concluded that when Brown put Poteet in possession, Poteet became the equitable owner and as between the two Poteet was entitled to possession; that when Brown sold to Simmons, the automobile was a stolen one and Simmons obtained no greater right against Poteet than Brown enjoyed; that Poteet, since July 7, 1949, was entitled to the return of the automobile and to damages for its unlawful detention; that the insurance company had a special interest by reason of payment under its policy of insurance; that since Simmons could not return the automobile to plaintiffs, they were entitled to its reasonable value with interest from July 7, 1949, and judgment was rendered accordingly.
Defendant’s motion for judgment notwithstanding the verdict (judgment) and his motion for a new trial were denied and he perfected his appeal, specifying that the trial court erred in its rulings on the last mentioned motions, in fixing the value of the automobile at $2,500 and in refusing to render judgment in his favor. Appellees have moved that the appeal be dismissed for the reason the specifications are insufficient to present any question for review on appeal.
Treated in inverse order, the last specification amounts to nothing more than a statement the decision is wrong and presents no reviewable ruling (Cimarron Co-Operative Equity Exchange v. Warner, 166 Kan. 190, 200 P. 2d 283). The specification the trial court erred in fixing the value of the automobile is not mentioned in the brief and is considered abandoned. Were there no other specifications, the appellees’ motion would be sustained. However, inept though its title may be, the body of the motion for judgment notwithstanding the verdict, when there had been no verdict, refers to the findings made by the trial court, and in a very broad way may be said to raise the same question as the motion for a new trial, and the latter will be considered.
In his brief appellant, under a heading “Statement Of The Case” makes what purports to be the facts, but in which there is no reference whatever to the abstract as required by Rule 6 (1). This statement refers to events and occurrences which we cannot find in the abstract, is without any regard to the facts, found by the trial court, and in general states the facts favorably to himself to support his argument. We shall not pause to point out inaccuracies, for our examination of the record as abstracted shows that the findings as made by the trial court are supported by the evidence.
Appellant’s argument runs that Jay Brown, upon purchasing the automobile from McCann Motor Company on May 4, 1949, obtained a bill of sale and using it promptly applied for registration in Kansas and for a certificate of title, was issued license plates, and later received the certificate of title (June 8, 1949), all in compliance with the law of Kansas; that on July 7, 1949, Brown sold the car to McCandless & Dunn, second-hand dealers, and assigned the title in blank and delivered it and the automobile to them and upon their selling the automobile to appellant (on July 7) they filled in his name and he then applied for and received a certificate of title in his own name. He then says that plaintiff did not plead the law of Texas and therefore the presumption is that the law of that state is the same as in Kansas (not so, see G. S. 1949, 60-2878, 2879, 2880) and if Kansas law is applied Poteet got no title (apparently on the theory that when Brown sold to Poteet on June 1, 1949, Brown failed to notify Kansas authorities he had sold it). Appellant then contends that the Brown sale to Poteet in Texas was not good in that Brown failed to fully comply with the registration law of Texas in getting the Texas certificate of title and Poteet’s purchase from him was a nullity. After directing attention to various decisions of Texas and Kansas, and arguing that Poteet knew the automobile had Kansas license tags on it when he purchased it (a statement contrary to the record) and that Poteet did not demand and receive from Brown the Kansas certificate of title (which the record discloses Brown did not receive until after he had sold and delivered the automobile to Poteet) he says Poteet fraudulently participated with Brown in obtaining the Texas certificate of title without surrendering the Kansas certificate (a statement contrary to the record), and upon this premise, says that Poteet violated the law of Texas and the sale to him was void. Although conceding that Brown stole the automobile from Poteet in Texas on July 6, 1949, appellant argues that because Brown had a Kansas certificate of title when he sold to McCandless & Dunn on July 7, 1949, that that firm did not purchase from a thief or as stated in his summary, McCandless & Dunn were innocent purchasers for value, and obtained good title to the automobile which they conveyed to appellant; that Poteet violated the law of Texas, failed to comply with the law, got no title because of his failure to surrender the Kansas certificate of title; that he participated with Brown in fraudulently obtaining the Texas certificate of title and should not prevail. The premise for a good part of the above argument is against the record and cannot be sustained.
There is no doubt but that the law is that a party may maintain an action in replevin only where he pleads and proves that he is the owner of or has a special right in the property the possession of which is sought, and that he may maintain the action against anyone not having a better title and right to possession (Felts v. Sugg, 167 Kan. 488, 492, 207 P. 2d 460).
We shall first consider the question of Poteet’s ownership of the car under the laws of Texas. In so doing it is not necessary that we again review the facts above detailed, nor that we go into great detail concerning the law of Texas providing for the registration of motor vehicles, issuance of certificates of title, and sales of motor vehicles. References here made are to the 1951 Cumulative Annual Pocket Part of Vernon s Annotated Penal Code of the State of Texas, Title 17. Under article 1434 it is provided, in part, that no person shall sell any used or second-hand vehicle required to be registered under the laws of Texas until the vehicle has been duly registered in the state for the current year and that the seller shall deliver to the transferee at the time of delivery of the vehicle, the license receipt issued for registration and the properly assigned certificate of title, and that whoever violates the act shall be guilty of a misdemeanor. Article 1435 provides that the transferee shall, within ten days of the transfer, file with the county tax assessor-collector the registration receipt and the properly assigned certificate of title. In Granger v. Ponder (Civ. App.), 286 S. W. 668, it was held that violation of the two above articles did not make a sale void or prevent title from passing, and in Moore v. Galey (Civ. App.), 286 S. W. 679, it was held that a sale of a second-hand automobile by a dealer without compliance with the sections, did not make the sale void.
Article 1436 of the above title consists of 64 sections’, all dealing with certificates of title to motor vehicles. Section 10 defines a used car as a motor vehicle that has been subject to a first sale whether within Texas or elsewhere. It is conceded in the case at bar that the automobile involved was a used car under this section. Section 17 defines an “importer” as any person except a manufacturer who brings any used motor vehicle into the state for the purpose of sale within the state. Section 23 defines the term “importer’s certificate” to be a certificate on a form prescribed by the department for each used motor vehicle brought into the state for purposes of sale within the state and that such importer’s certificate must be accompanied by such evidence of title to the motor vehicle as the department may require. Section 26 defines the term “designated agent” to be the county tax collector who may perform duties under the act. Under section 27 it is provided that before selling or disposing of any motor vehicle required to be registered or licensed in the state, that the owner shall make application to the designated agent in the county of his domicile upon form to be prescribed by the department, for a certificate of title for such motor vehicle, and under section 29 no such designated agent shall issue a receipt for a certificate of title to any used vehicle imported into the state for the purpose of sale within the state without the delivery to him by the applicant of an importer’s certificate, properly assigned by the importer upon a form to be prescribed by the department. Section 33 provides that no motor vehicle may be disposed of at subsequent sale unless the owner designated in the certificate of title shall transfer the certificate of title on form,to be prescribed by the department before a notary public and setting forth the requirements of an accompanying affidavit with respect to license. Section 52 provides that it shall be unlawful to acquire any title in a motor vehicle registered or licensed in the state without then and there demanding of the proposed seller the registration receipt and certificate of title covering the particular motor vehicle which shall, upon confirmation of the purchase, be transferred upon such form as may be provided by the department. Section 53 provides that all sales made in violation of the act shall be void and no title shall pass until the provisions of the act have been complied with.
There have been many cases before the courts of Texas dealing with various sections of the act. In McKinney v. Croan, 144 Tex. 9, 188 S. W. 2d 144, it was held that the act did not require the purchaser of a motor vehicle to obtain a certificate of title from the state highway department immediately upon purchasing the vehicle; and in Fulcher v. Hall (Civ. App), 170 S. W. 2d 321, it was held that an automobile dealer who acquired an automobile from a transferor who signed a blank application for a certificate of title had the legal right to have the transferor obtain and transfer title to the dealer; and in McKinney v. Croan, supra, it was held that when the plaintiff was in rightful possession of a truck under authority from the registered owner at the time a truck was stolen he was entitled to maintain an action against a defendant who had purchased the truck from a thief to recover such truck notwithstanding the registered owner, in endorsing the certificate of title did not insert the name of the future purchaser.
In support of his contention that appellees did not obtain a sufficient certificate of title under the law of Texas, appellant relies principally upon Ball Bros. Trucking Co. v. Sorenson (Tex. App), 191 S. W. 2d 908. Briefly stated, Buchanan Motors of Wichita, Kan., owned an automobile on which it had procured a Kansas certificate of title. It sold the automobile to one Dawdy and assigned the certificate of title to him, his address being stated thereon as Fort Worth, Texas. Dawdy, representing himself to be a resident of Topeka procured a loan thereon from Sorenson of Topeka, but the certificate of title was not assigned to Sorenson, nor was any new certificate obtained. Dawdy shortly brought the automobile to Texas as an “importer” and procured a Texas certificate of title which showed no liens, and upon the strength of it sold the automobile to Ball Bros. Trucking Co. which procured a certificate of title showing a lien in favor of Motor Investment Co. of Fort Worth. Sorenson discovered that Dawdy was in Texas and brought suit to foreclose his lien. Without reviewing the reasoning of the court of appeals, it may be said shortly that it was held that Dawdy unlawfully concealed the plaintiff’s lien in procuring his certificate of title and that one who holds a valid lien in another state is not bound to watch the movements of the vehicle in order to ascertain into what other state it might be taken nor compelled to file a copy of his mortgage in such state to prevent loss of his lien, and that one purchasing or lending money on the security of the vehicle imported into the state has a duty to see that the seller has complied with the Texas certificate of title law, and, if derelict in such duty, acts at his peril. Other decisions of similar effect will not be reviewed, for there is no question here but that at the time Brown registered the automobile in Texas he was the absolute owner of the involved automobile, there were no liens against it, and that cases dealing with such a situation as is disclosed in the Ball Bros, case are hardly in point here.
A situation analogous to that presently before us was before the court in Manning v. Miller (Tex. App.), 206 S. W. 2d 165. Miller purchased an automobile in Louisiana and took it, with Louisiana license plates thereon, to Port Arthur, Texas, where he sold it to Manning, executing an application for a Texas certificate of title which he endorsed in blank and delivered to Manning with a bill of sale. On the evening of the same day, without Manning’s consent, Miller took the automobile to San Antonio, Texas, where he undertook to sell it to Shemaria for $1,250. She-maria paid the money and received possession of the car along with a power of attorney and an instrument described as a bill of sale. A few days later the automobile was seized as being stolen. Sometime- thereafter Manning obtained from Miller a new application for a Texas certificate of title and one was issued by the State of Texas. In a suit to determine ownership the trial court held in favor of Shemaria, but on appeal the court of appeals reversed, saying that neither Manning nor Shemaria had complied fully with the requirements of the certificate of title act; that the fact Miller stole his own automobile did not prevent it from being a stolen one, and that after Miller had delivered the car to Manning and had been paid therefor, Manning became lawfully entitled to possession as against Miller even though the legal title had not passed, and that when Shemaria attempted to purchase the automobile from Miller he was attempting to purchase a stolen automobile and acquired no title thereto, and further stating that Shemaria had not complied with the certificate of title act, said:
“Regardless of what has been said above, Manning is now and was at the time of the trial the holder of a certificate of title issued to him by the State Highway Department, and no other party to this suit has shown a better title to this automobile.” (1. c. 167.)
Appellant and appellees both direct attention to decisions of this court where the title to a motor vehicle was involved. None of them treat a situation such, as is presented in this appeal and we shall not devote any space to reviewing those decisions and pointing out reasons why they are not controlling here.
In the case at bar it appears that Brown, then the absolute owner of the involved automobile free from the claims of any other person, brought it into Texas, made an application for an importer’s certificate on the prescribed form, made application for registration and a certificate of title and thereafter sold the car through the United Auto Sales of Dallas to Poteet and delivered possession of the car to him, and that about three weeks thereafter the Texas certificate of title was issued to Brown, and about four days thereafter assigned by Brown to the United Auto Dealers, who in turn reassigned it to Poteet, who in turn promptly applied for a Texas certificate of title which he did not receive until after the automobile had been stolen from him. When Brown first sold the car to Poteet and put him in possession, at the least Poteet became the equitable owner of the car and entitled to force Brown to furnish him with the proper certificate of title. Brown did subsequently furnish him a certificate of title that complied with the laws of the State of Texas. Poteet had not only possession of the automobile but he had Brown’s certificate of title properly assigned to United Auto Sales and by the United Auto Sales to him and he had made application for a certificate of title in his owri name. In our opinion there was sufficient compliance with the laws of Texas by Brown in procuring a certificate of title on the automobile and in his name, in transferring it to the United Auto Sales and in the United Auto Sales assigning it to Poteet and in Poteet’s procuring the certificate of title that Poteet was entitled to possession against Brown and anyone claiming under him.
Appellant concedes that after Brown sold and delivered the automobile to Poteet as above set forth, he stole it from Poteet and brought it to Kansas where he purported to sell it to McCandless & Dunn at Wichita. Appellant, however, does not direct attention to any fact or to any rule of law tending to prove or show that Brown, who had no title to the automobile after he had sold and delivered it to Poteet, could by any device, invest McCandless & Dunn with a better title than he had. Appellant’s purchase from McCandless & Dunn gave him no better title than that firm had.
We do not overlook the fact that through his scheming Brown was able to get a Kansas certificate of title to the automobile which he used to defraud McCandless & Dunn. The present action however does not and cannot reach any question as to how or why Brown was enabled to perpetrate the fraud and we shall not comment thereon.
The judgment of the trial court is affirmed.
Harvey, C. J., dissents. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a policy of industrial insurance. From a judgment in favor of the plaintiffs the defendant appeals.
Plaintiffs’ amended petition alleged the status of the parties and that on January 5, 1948, defendant issued its industrial policy of life insurance in the maximum sum of $486 on the life of Norma M. Cooley, sometimes referred to as Norma Maxine Cooley, who was the daughter of the plaintiffs, who were named as beneficiaries; that a written application was made for the policy; that Helen Cooley supplied the information necessary for the application, the blanks being filled out by a representative of the defendant company; that the application was in the possession of the defendant and plaintiffs had no copy; that the policy was in force on April 2, 1948, when Norma M. Cooley died; that Norma M. Cooley suffered from diabetes from about July, 1945, to the date of her death; that plaintiffs fulfilled all the conditions of the policy as required of them; that defendant failed to pay plaintiffs the sum of $486 and that such sum was due and owing from defendant to them. They prayed for judgment for $486 and costs.
Defendant answered, admitting issuance of the policy and alleged that it issued the same upon the basis of an application signed by Helen Cooley who supplied the information necessary for such application; that at the time she signed the application she had full knowledge that the insured Norma M. Cooley was and had been suffering from diabetes and that in answer to question 25 of the application relative to whether the insured was suffering from diabetes, she answered the question “No”; that the answer constituted a misrepresentation of a material fact which was known to Helen Cooley but was unknown to the defendant. It was further alleged the application constituted the basis upon which the policy of insurance was issued and was a part of the contract of insurance; that defendant relied upon the statement of facts in the application and if it had known that Norma M. Cooley was suffering from diabetes it would not have issued the policy of insurance; that the cause of her death was diabetes, and because of the misrepresentations of a material fact by plaintiff Helen Cooley the policy of in surance was void and plaintiffs were not entitled to recover thereon. Defendant prayed for judgment in its favor. Attached to defendant’s answer was a copy of the application. Question 21 inquired whether insured was in good health and discloses an answer “Yes.” Question 25 inquired whether insured had ever had diabetes, or other named diseases, and discloses an answer “No.” It bears the signature “Mrs. Norman Cooley” who is the same person as Helen Cooley and a later notation indicates she signed the application because Norma M. Cooley was less than sixteen years of age.
Plaintiffs filed their verified reply, denying all allegations of new matter in the answer and all allegations inconsistent with the allegations of their petition.
At the trial defendant demurred to the petition and moved the court for judgment on the opening statement of plaintiffs on the ground the petition and opening statement failed to constitute a cause of action, and on the further ground that the statements of counsel relative to correct answers having been given and falsely stated in the application by the insured were inadmissible in evidence due to the fact the same were not pleaded either in the petition or reply. The trial court overruled the demurrer and denied the motion and the trial proceeded. At the conclusion of plaintiffs’ evidence, which will be referred to in more detail later, defendant first moved that portions thereof be stricken and that motion being denied, it demurred. That demurrer was overruled and it then presented its evidence.
Under instructions of which no complaint is made the jury returned a general verdict in favor of plaintiffs and answered two special questions. In substance the answers were that Mrs. Cooley did not give the answer “Yes” to question 21 of the application nor the answer “No” to question 25 of the application.
Defendant’s motion for a new trial was denied and it perfected an appeal to this court, specifying error with respect to the matters hereafter discussed.
It is necessary, before taking up appellant’s contentions of error, that we make reference to the evidence. Without taking note of details, of answers on direct or cross-examination, and of matters merely relevant, the substance of the evidence is as follows: Norman Cooley, father of Norma M. Cooley, testified that in December, 1947, Lakin, an agent of the appellant company with whom he was acquainted, and Hayes, its superintendent, called upon him at his filling station, and Lakin asked about selling him some insur anee. In the conversation Cooley said he had three daughters; that one was suffering from diabetes, and in response to their questions as to her condition he said it had been good lately and she was getting along well at the time; that Lakin and Hayes wanted to sell him insurance for the other two girls; the witness replied that Norma was getting along all right, that it had been a .long time since she had been to a doctor and he did not feel it was fair to take out insurance for the other girls and not for Norma Maxine and he wouldn’t buy insurance for the other two unless he could for Norma Maxine; that Lakin and Hayes wanted to see the girls and Cooley told them to see the girls at their home and his wife could sign the application. He testified at some length about Norma’s activities and state of health and to facts warranting a conclusion that she had died suddenly. Other witnesses, who were present at the filling station, corroborated Cooley’s account of his conversation with Lakin and Hayes. Helen Cooley testified that her husband had told her of his conversation with Lakin and Hayes; that they came to the house; that three policies were taken out; that Lakin filled out the blanks in the application form, asking questions about ages, names and addresses, which she answered. When asked about question 25, she stated Lakin started reading it and tiren said, “We have the answers to these questions. That has already been discussed with Mr. Cooley at the station.” She further testified she did not read the application of Norma Maxine after it was prepared by Lakin but that she signed it because Norma was not there. On behalf of the appellant, Lakin testified as to the conversation at the filling station but stated that the health of any of the children was not discussed. He testified that he and Hayes went out to see Mrs. Cooley and that he read all questions in the application in detail, filled out the answers that she made and handed the application to her to sign; that she glanced over it and signed, and “Q. Did she read it? A. Well, I wouldn’t say that she read everything on it, but she glanced over it and signed it, just like you or I would.” Hayes testified that he was a superintendent of the appellant company and that he was with Lakin when he took the application of Helen Cooley on the life of Norma. Without going into detail, he testified he heard Lakin ask Mrs. Cooley question 25 and heard her answer “No.”
Appellant first contends that the trial court erred in overruling its demurrer to the appellees’ petition and in denying its motion for judgment on the opening statement. Under this heading appellant does not contend the petition did not state a cause of action, but does contend that the petition did not allege directly or indirectly that truthful answers to questions in the application were given but falsified by the agent; that appellant had affirmatively alleged as a defense that false answers had been given, and that the reply was only a general denial, a mere negative, and that neither the petition nor the reply set up an affirmative defense to the allegations of appellant’s answer. The abstract does not contain the appellees’ opening statement and we are not in a position to consider it. Appellant supports its position by directing attention to the first paragraph of the syllabus in Van Ross v. Metropolitan Life Ins. Co., 134 Kan. 479, 7 P. 2d 41, 81 A. L. R. 821, where it was held that in an action on a policy of insurance where the defendant sought to avoid liability by alleging falsity of answers of the insured in his application, it was proper for the plaintiff to reply admitting the application was as made by the agent but that insured gave truthful answers to the agent who failed to answer them as given. Reference to that case will show the defendant sought to have the allegations stricken from the reply and the ruling was in response to that motion. The holding is not to be twisted around to mean that the plaintiff must so plead. In the case before us, appellees by their petition stated a cause of action. Defendant answered, alleging new matter, as it had a right to do under G. S. 1949, 60-710, Second. Plaintiff then replied denying the new matter, sufficient under G. S. 1949, 60-717 to raise an issue. Appellant’s further contention, founded on the assumed correctness of its contention just discussed, is that on the basis of the pleadings and the issues formed, the fraudulent representations in the application became fraud as a matter of law, in support of which it cites the syllabus in Scott v. National Reserve Life Ins. Co., 144 Kan. 224, 58 P. 2d 1131. The premise for application of the rule in the last case is not sound and the rule there stated needs no discussion. Insofar as this case is concerned, the pleadings are sufficient and the trial court did not err in overruling the demurrer and motion lodged against the petition and appellees’ opening statement.
Appellant further contends that the trial court erred in overruling its objections to the introduction of appellees’ evidence with respect to the answers made or not made to the questions in the application, for the assigned reason all such testimony was incompetent, irrelevant and immaterial, because outside the issues framed by the pleadings, in support of which it again cites Van Ross v. Metropolitan Life Ins. Co., supra. What has been said concerning appellant’s first contention disposes of any contention the evidence went beyond the issues. Appellant states however that although Norman Cooley did tell appellant’s agents his daughter had diabetes he did not make the application; that Helen Cooley made the application and did not disclose the fact, and that the evidence was incompetent to serve as a defense to the answer. While it may be literally true that Helen Cooley did not inform the agents that Norma had diabetes, her evidence was that she was not asked any such question. Our attention is directed to Priest v. Life Ins. Co., 116 Kan. 421, 227 Pac. 538, and to Minear v. Benefit Association of Railway Employees, 169 Kan. 199, 218 P. 2d 244, holding to the general effect that where false answers are knowingly given by an applicant for insurance, the fact that the agent not authorized to decide whether the policy should be issued knew of their falsity, does not prevent the company from successfully resisting payment on the ground of such fraud.
We shall not comment on the rule of those cases. Conceding its correctness, it has nothing to do with the competency of evidence, although the effect of that evidence may be stich as to show the rule has no application, a matter next considered. The contention the evidence was erroneously admitted over appellant’s objection cannot be sustained.
Appellant contends the trial court erred in overruling its demurrer to appellees’ evidence. The argument under this heading is predicated on the assumption the appellees’ evidence concerning the answers to the application was incompetent and should be ignored. For the reasons heretofore stated, we will not indulge in any such assumption. Appellees’ evidence disclosed that the appellant’s agents, one of whom later designated himself as a superintendent of the company, but whose authority was not otherwise shown, were advised by Norman Cooley that the insured child had diabetes, so the agents did know that fact. The demurred conceded the truthfulness of the testimony of Helen Cooley and that testimony may not be construed on demurrer as showing she made any false answer as to the insured child.
The rule in this state is that an insurance agent in making out an application for insurance acts as the agent of the company and not of the applicant, and if the applicant makes truthful answers to the questions propounded, the company cannot generally take advantage of false answers entered by the agent contrary to the facts as stated by the applicant. Applications of the rule, not limited to life insurance cases, have been made in Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, 8 L. R. A. 70, 19 Am. St. R. 150; Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343; Shinn v. Benefit Association, 102 Kan. 134, 169 Pac. 215; Van Ross v. Metropolitan Life Ins. Co., supra; Carroll v. National Fire Ins. Co., 136 Kan. 580, 16 P. 2d 467; and cases cited in the above. The rule stated represents the great weight of authority. See annotations in 43 A. L. R. 527, 81 A. L. R. 833, 117 A. L. R. 790 and 148 A. L. R. 507. See also 29 Am. Jur. 641 and 45 C. J. S. 179. No reason is suggested, and we know of none, why an applicant for insurance, who is not asked a question contained in the application, but to which an agent enters a false answer, is not entitled to a rule as favorable as that stated. Appellees’ evidence was sufficient under the above rule and the trial court did not err in overruling the appellant’s demurrer to it.
Appellant also contends the trial court erred in denying its motion for a new trial. The burden of the argument is that because of surprise which ordinary prudence could not have guarded against, it was not afforded- a fair and reasonable opportunity to present its evidence and be heard on the merits of the case. It argues that it had a right to rely on ordinary rules of pleading and to expect the appellees would allege in their reply any affirmative matters relied on as a defense to the allegations of the answer, and referring to its argument as to the sufficiency of the pleadings, previously treated herein, contends it was taken by surprise. Even though it be conceded, which it is not, that its erroneous view of the pleadings left it surprised, the record does not disclose it asked for any continuance for that or for any other reason. No contention is made by appellant that it was deprived of full opportunity to present its defense and the record discloses that it did offer the testimony of its two agents who were present when the application for the insurance was taken. If appellant had other witnesses or further evidence, the abstracts and briefs do not disclose the same. It has not been made to appear that the trial court erred in denying appellant’s motion for a new trial.
Our examination of the record convinces us that the judgment of the trial court should be and it is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.
This was an action upon a money judgment of the superior court of Los Angeles County, California, entered upon a confession of judgment. The appeal is from an order of the court sustaining plaintiff’s demurrer to the answer of defendant upon the ground that the answer does not state facts sufficient to constitute a defense.
Plaintiff in her petition alleged that on February 24, 1949, in the superior court of Los Angeles County, California, she duly recovered a judgment against the defendant based on a written confession of judgment; that no part of the judgment has been paid, and there is due and owing plaintiff from defendant the sum of $11,654.10 with interest at six percent since February 24, 1949, and $10 costs. Attached to the petition and made a part thereof is an authenticated copy of the California judgment. The prayer was for the sum due in the judgment.
To this petition defendant filed an amended answer which contained a general denial, and defendant further alleged that he is a bona fide resident of the state of Kansas residing at 2504 West 51st street in Johnson county, where he has resided continuously for more than four years; that he has not been in the state of Cali fornia for more than four years; that no service of process was ever served upon him in any action brought in the state of California; that the purported judgment upon which plaintiff’s petition was filed was obtained without legal service of process upon him; that he had never entered into any legal agreement, orally or in writing, with any person to enter his appearance in any action in the state of California, nor did he ever enter into any legal written or oral agreement to confess judgment in any action whatsoever; that the purported judgment upon which this action is brought was obtained without proper service of process upon him and is therefore null and void and of no force and effect; that the purported judgment upon which this action was brought was obtained by fraud; that defendant was deprived of his day in court by reason of the fraud committed upon him and by reason of the fact that the superior court of the County of Los Angeles, California, had no jurisdiction over this defendant or over the subject matter; that this defendant never appeared in the superior court of Los Angeles County, California, in any action brought against him by this plaintiff, nor did he authorize any agent or other person to appear for him in such action; that the purported judgment in the action brought by plaintiff against defendant in the superior court of Los Angeles County, California, deprived the defendant of his proper rights without due process of law and violated the rights guaranteed him under the fourteenth amendment to the constitution of the United States; that the defendant had and has a good and meritorious defense to the action brought in the state of California by the plaintiff in which the purported judgment was entered, but because of the fraudulent action of the plaintiff and her agents was deprived of an opportunity to enter such defense and was deprived of his day in court and the rights guaranteed him by the fourteenth amendment to the constitution of the United States. (Our italics.)
Further answering defendant states that on February 23, 1949, one Morton E. Feiler, who was at that time attorney for the plaintiff, filed in the superior court of California for the County of Los Angeles, under cause No. 55,6115, a confession of judgment in the following words and figures:
“In the Superior Court of the State of California in and for the County of Los Angeles. Esther G. Barnes, Plaintiff, vs. E. M. Hilton. Defendant, No. 556115.
“Confession of Judgment
“I, Morton E. Feiler, Esq., an attorney at law duly licensed to practice in the Courts of Record of the State of California do hereby confess judgment herein in favor of Esther G. Barnes of the City of Los Angeles, County of Los Angeles, State of California against E. M. Hilton for the sum of $11,654.10, and authorize judgment to be entered therefor against said E. M. Hilton, with legal interest thereon from this date.
“This Confession of Judgment is for a debt justly due and owing to the said Esther G. Barnes, arising upon the following facts, to-wit:
“On December 28, 1942, the said defendant E. M. Hilton executed two promissory notes to the order of the plaintiff, one in the principal sum of $6,705.00, together with interest thereon at the rate of six per cent per annum from the date thereof and an attorney’s fee of $15.00 in the event of nonpayment and the other in the sum of $250.00 with interest thereon at the rate of six per cent per annum from the date thereof and an attorney’s fee of $15.00 in the event of non-payment. True copies of said promissory notes marked Exhibits A and B are attached hereto and made part hereof by reference.
“On January 25, 1943, the said defendant, E. M. Hilton executed two promissory notes to the order of the plaintiff, one in the principal sum of $1,250.00, together with interest thereon at the rate of six per cent per annum from the date of demand which was September 1, 1943, and an attorney’s fee of $15.00 in the event of non-payment and the other in the sum of $300.00 with interest thereon at the rate of six per cent per annum from January 25, 1943, and an attorney’s fee of $15.00 in the event of non-payment. True copies of said promissory notes marked Exhibits C and D are attached hereto and made part hereof by reference.
“That the following cognovit was executed by E. M. Hilton as part of each of the aforesaid promissory notes: (Same as in Exhibit “A”.)
“That each of the aforesaid promissory notes was executed by the defendant to the order of the plaintiff for valuable consideration, to-wit monies loaned by the plaintiff to the defendant in the full amount of the principal sums as indicated on each of said four promissory notes, which monies were loaned by the plaintiff to the defendant in the City of Los Angeles, County of Los Angeles, State of California.
“That by the terms of said promissory notes, the said principal sums specified therein, together with interest at the rate of six per cent per annum thereon from the dates of the execution of said notes or from the date of demand for the payment of the note described as ‘Exhibit D,’ were made payable in the City of Los Angeles, County of Los Angeles, State of California.
“That no part of the said notes have been paid by the defendant to the plaintiff although the plaintiff has heretofore made due demand upon the defendant for the payment of same and the whole of said sums due under said promissory notes, together with interest and attorney’s fees thereon is now due, owing and unpaid from defendant to plaintiff as follows:
Note Dated Principal Interest Attorney’s Fee Total
Deo. 28, 1942 $6,705.00 $2,480.85 $15.00 $9,200.85
Dec. 28, 1942 250.00 92.50 15.00 357.50
Jan. 25, 1943 1,250.00 406.25 15.00 1,671.25
Jan. 25, 1943 300.00 109.50 15.00 424.50
$11,654.10
“That pursuant to the said warrant of Attorney to Confess Judgment as contained in said Promissory notes and by virtue thereof and on behalf of the defendant, E. M. Hilton, comes now Morton E. Feiler, Esq. and for the purpose duly executed by the said E. M. Hilton in said promissory notes waives the issuing and service of process and with the consent of the plaintiff, confesses that the said E. M Hilton is justly indebted to the said plaintiff in the sum of $11,654.10 and that the same is now due to the plaintiff, Esther G. Bames, as the holder of said promissory notes.
(Signed) Morton E. Feiler
“ ‘Exhibit A.
$6705.00 Los Angeles, Calif 12-28 1942
“ ‘One Year_ after date for value received I promise to pay to Esther Bames or order Six Thousand Seven Hundred and Five no/100 Dollars at Los Angeles Calif — in consideration whereof, _ do hereby authorize and empower or any other Attorney of any Court of Record in term time or vacation, to enter appearance therein, or before any Justice of Peace and at any time after date hereof, waiving all process, to confess judgment in favor of holder hereof for the then amount hereof, costs and fifteen dollars Attorney’s fees, to consent to immediate issue of execution, to waive and release all errors and irregularities that may occur in entering up judgment hereon, and further to agree that no appeal or writ of error shall be prosecuted on the judgment entered by virtue hereof, nor any bill in equity filed to interfere in any manner with the operation of said judgment or execution issued thereon.
“ ‘Witness hand the day and year first above written.
E. M. Hilton.
“ ‘Interest 6% Per Annum.’ ”
Exhibit “B” is a note dated Los Angeles, California, December 28, 1942, for the sum of $250.00, due in 90 days; otherwise it is in the form of Exhibit “A.” Exhibit “C” is a note dated Los Angeles, California, January 25, 1943, for $300.00, due in 60 days; otherwise it is in the same form as Exhibit “A.” Exhibit “D,” is a note dated Los Angeles, California, January 25, 1943, for $1,250.00, due on demand; otherwise it is in the same form as Exhibit “A.”
“State of California, County of Los Angeles, ss.
“Morton E. Feiler, being by me first duly sworn, deposes and says: that he is the attorney in the above entitled action; that he has read the foregoing Confession of Judgment and knows the contents thereof; and that the same is true of his own knowledge, except as to the matters which are therein stated upon his information or belief; and as to those matters which he believes it to be true.
(Signed) Morton E. Feiler
“Subscribed and sworn to before me this 24 day of February, 1949.
(Signed) D. L. Valley
(Seal) Notary Public in and for the
County of Los Angeles,
State of California.”
It was further alleged that on February 25, 1949, Morton E. Feiler caused to be entered a judgment in the amount of $11,654.10 with interest, being the same judgment as on which suit was brought in this action; but no further proceedings were had in the state of California. It was further alleged the judgment was entered under the provisions of Title III, Chapter 1, Sections 1132, 1133, 1134 and 1135 of the California Code of Civil Procedure, which was in full force and effect at all times mentioned herein, which actions are as follows:
“Sec. 1132. Judgment may be confessed for debt or contingent liability: (Entry.) A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts.
“Sec. 1133. Statement (by defendant) in writing and form thereof. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:
“1. It must authorize the entry of judgment for a specified sum;
“2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due;
“3. (Relates to a contingent liability.)
“Sec. 1134. (Filing and indorsement of statement: Entry of judgment: Judgment roll.) In courts other than justices’ courts, the statement must be filed with the clerk of the court in which the judgment is to be entered, who must indorse upon it, and enter a judgment of such court for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment indorsed, thereupon becomes the judgment roll.
“Sec. 1135. (Relates' to procedure in justice’s court.)”
It was further alleged that the purported judgment was not in accordance with the laws of the state of California made and provided for judgments by confession and that the judgment is null and void. It was further alleged that the judgment is against the public policy of the state of Kansas. His prayer was that defendant be discharged with his costs.
In this court counsel for appellant first argue that by filing a demurrer to the answer plaintiff admits all the facts pleaded in the petition. That is true as to facts alone which are well pleaded, but it is not true as to the legal interpretation of the facts. For example: In his answer defendant pleads “that he never entered into any legal agreement” with any person to enter his appearance in any action in the state of California, and that he did not “enter into any legal written or oral agreement to confess judgment in any action.” These allegations question only the legality of the agreement and do not mean that he did not enter into the agreement contained in the cognovit embodied in the respective notes. It does allege that the judgment rendered against him in the superior court of California was obtained by fraud; but this is ineffective because he sets out no act alleged to have constituted fraud. He alleges that he had and has a good and meritorious defense to the action brought in California, but that is ineffectual because he does not state what the defense is. The answer does make it clear that there has been no proceeding in California to have the judgment rendered against him in that state set aside. If he were not indebted on the note, or if he had any good and meritorious defense, or if there was any fraud in procuring the judgment, there is no reason why he could not have set those matters up in a proceeding to have the judgment set aside in California. The judgment still stands of record as a valid judgment of the superior court of California, which is the court of general jurisdiction in that state. (Art. 6, sec. 5, Calif. Const.) Such a judgment will not be set aside upon the general noneffectual statements above mentioned.
Appellant does not contend that the California attorney who filed the confession of judgment in the California court included therein anything he was not authorized by the cognovits in the respective notes to include in such a statement. His real contention appears to be that the respective cognovits are ineffective because his signature thereto was not verified by his oath. We think the point not well taken. The California attorney was authorized to make that oath and did so. The cognovits are written into the respective notes and as a part of the consideration therefor. They constitute benefits for the payee. Perhaps plaintiff would not have loaned him the monies without them. The cognovits are parts of the contracts that defendant was privileged to make, and as between the parties there is no reason why he is not bound thereby.
In Smith v. The State, 64 Kan. 730, 68 Pac. 641, it was said:
“A judgment entered by confession, without the filing of an affidavit, required by section 4854 of the General Statutes of 1901 (now G. S. 1949, 60-3113), is valid between the parties.” (Citing cases from Indiana, Minnesota, Iowa and New York.)
This was cited with approval in Brooks v. National Bank of Topeka, 153 Kan. 831, 838, 113 P. 2d 1069. See, also, Manley v. Mayer, 68 Kan. 377, 390, 391, 75 Pac. 550. For our former decisions sustaining judgments on confession rendered in other states see Ritter v. Hoffman, 35 Kan. 215, 10 Pac. 576; Kitchen v. National Bank, 53 Kan. 242, 36 Pac. 344, and Bank & Trust Co. v. Porth, 116 Kan. 310, 226 Pac. 747, and authorities there cited.
We notice, also, that by the cognovits the attorney was “to waive and release all errors and irregularities that may occur in entering up judgment hereon.” So, if there was any error or irregularity in the matter the defendant waived it by his cognovits.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This appeal was considered and passed on July 3,1951. (See Mitchell v. Mitchell, 171 Kan. 390, 233 P. 2d 517.) At that time the judgment of the trial court was reversed. A rehearing was allowed and it was again finally submitted in December, 1951.
The action was for specific performance of a contract entered into by a husband and wife in contemplation of a divorce. For detailed statement of facts reference is made to Mitchell v. Mitchell, supra.
Ry the contract defendant agreed to pay plaintiff $100 a month during her lifetime, or until she should remarry, and if such remarriage should terminate by death, separation or divorce, then the payments should be resumed. At that time the parties lived in Oklahoma. March 3, 1945, they were divorced in an Oklahoma court. Payments were made by the hubsand pursuant to the contract. May 3, 1945, they remarried and payments were stopped in conformance with the contract. Subsequently they moved to Missouri. In that state they were again divorced by the circuit court of that state. Neither the Oklahoma decree of divorce nor the one in Missouri mentioned the contract of February 20, 1945, or made any mention of a property settlement. After the Missouri divorce, defendant made no payments pursuant to the separation contract and otherwise failed to abide by it. Subsequently both parties became domiciled in Kansas. This action was brought to enforce the contract. Upon defendant’s motion the trial court required the plaintiff to attach to the petition copies of the Oklahoma decree of March 3, 1945, and of the Missouri decree of September 21, 1946.
The trial court gave judgment for the plaintiff. We reversed and said:
“We dealt with an analogous situation in Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750. There the defendant husband at the time of the divorce decree was entered was in arrears in his payments to his wife pursuant to the judgment in a separate maintenance action. This was not mentioned or considered in the divorce action. When the divorced wife attempted to garnishee her former husband’s salary to collect the back payments on the action in separate maintenance, we held:
“ In an action for divorce, matters of alimony, division of property and all obligations arising out of or connected with the marital relation may be presented and adjusted. If not then presented the judgment is as full and complete a bar to a subsequent assertion of such rights between the husband and wife as if they had been fully tried and determined in the divorce action.’ ”
On the rehearing plaintiff argues first that the enforcibility of the separation contracts in Oklahoma was not impaired by the fact that the contracts were not merged in the first divorce decree in Oklahoma. Opinions of the supreme court of Oklahoma are cited to sustain that position. We find it unnecessary to decide that question here. We are concerned with the effect to be given the Missouri decree. No mention of the separation contract was made in that decree either.
Plaintiff argues that in Missouri a husband and wife may make a valid and binding agreement to a property settlement in contemplation of a divorce without submitting it to the court, which may thereafter hear and determine all questions in respect to the divorce. (See Dorsett v. Dorsett, 232 Mo. App. 126, 90 S. W. 2d 188.)
Plaintiff then argues that the circuit court of Missouri did not take jurisdiction of the separation agreement since it was not submitted to it. Her-point is, that the circuit court of Missouri treats divorce cases as cases in equity and since equity jurisdiction will extend only to controversies which arise and are submitted by proper proceedings the separation contract here involved, never being submitted to the circuit court, the judgment of the trial court entering the divorce decree had no effect whatever on it.
The Missouri circuit court, however, had jurisdiction and could have adjudicated the rights of the parties under the contract had they been submitted to it. Actually that is the point upon which Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750, turned. We placed the decision in that case on the fact that the matters of alimony and division of property growing out of the separate maintenance action could have been settled in the subsequent divorce action. It is a well recognized general rule that where matters could have been adjudicated in an action between the same parties, the judgment in the earlier action will be res judicata of all those matters in a subsequent action between the same parties.
The argument of plaintiff in her motion for a rehearing, which was persuasive on the question of whether a rehearing should be allowed, was that by our decision of July 3, 1951, we were not giving full faith and credit to the Missouri judgment in the divorce action. Pláintiff points out G. S. 1949, 60-1518, which provides as follows:
“A judgment or decree of divorce rendered in any other state or territory of the United States in conformity with the laws thereof, shall be given full faith and credit in this state; . . .”
On examination and reconsideration we can discern no particular in which our decision failed to give full faith and credit to that judgment. It was a divorce action, nothing more. We recognize it as such. Plaintiff concedes that the property matters could have been adjudicated by the circuit court of Missouri had such matters been presented to it. Since that is the case those matters cannot be made the subject matter of a subsequent action in this state. The application of such a rule does not deny full faith and credit to the Missouri judgment.
The plaintiff also argues that our decision conflicts with our holding in Petty v. Petty, 167 Kan. 510, 207 P. 2d 428. What we have already said is an answer to that argument.
The judgment of reversal is adhered to and the trial court is directed to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
The appeals here considered arise from two separate actions, not consolidated for any purpose, but which involve the same question of law, and are therefore disposed of in one opinion. In each case the plaintiff commenced an action to recover damages for an alleged change of grade of a city street. The city’s demurrer to each petition was overruled and the appeals followed.
From each petition it is deducible that many years ago the city passed an ordinance establishing the grade of Fifth Street at all points involved and improved the street at the grade established. Fifth Street runs north and south. In 1948 the city enacted an ordinance appointing the state highway commission as its agent to secure the benefits of certain federal legislation for the construction of the viaduct along Fifth Street, a contract was let and the viaduct built. It is sufficient here to state that Fifth Street is eighty feet wide. The north end of the viaduct is about ten feet south of the south line of Commercial Street and the viaduct extends south over certain east and west streets including Utah and Main Streets and over certain railroad tracks, the location of the extreme south end of the viaduct being immaterial here. The viaduct is located in the center of Fifth Street, and is about thirty-six feet wide, and except at points of entrance and exit the floor of the viaduct is supported on concrete pillars or piers which are about thirty feet apart between the outside diameters east and west and about 120 feet apart north and south along the course of the viaduct. Between the outside edges of the north approach and the curb lines of the street, there is a space about twelve feet wide where vehicles can proceed along the original grade of the street, and to the south a slightly greater width between the pillars or piers and the curb.
As far as need be noted, in case No. 38,458, the plaintiff alleged ownership of real property on which were buildings used by it in its business, and located on the east side of Fifth Street, north of Utah Avenue and south of the railroad tracks to the north; that traffic on Fifth Street over the railroad tracks between Main and Utah Streets had been closed, and access to plaintiff’s property could be had only from Utah Avenue, Fifth Street being a “dead-end” street from Utah Avenue north to the tracks, the facts relative to establishment of the original grade, the construction of the viaduct, and that the change of grade had interfered with plaintiff’s ingress and egress to and from its property and that the viaduct, resting on piers with its floor over twenty feet above the former established grade, diminished plaintiff’s light and air, increased the dust and filth thrown on its property and decreased the value thereof in the sum of $50,000; that the city had never had any proceedings under the statutes for the award of damages by reason of change of grade, and that plaintiff had filed a claim therefor with the city, a copy being attached, and that the claim was rejected. Plaintiff prayed judgment for $50,000.
In case No. 38,459, plaintiffs alleged their ownership of real estate on the east side of Fifth Street immediately south of Commercial Street on which they had a two-story building used for a retail store and living quarters, the facts as to establishment of the original grade and the construction of the viaduct and the effect on Fifth Street, and by reason thereof their ingress and egress to and from Fifth Street was interfered with, their light and air had been diminished, increased amounts of dirt were thrown on their property, noxious noises and odors permeated their building; that the city had never had any statutory proceedings to fix damages; that they had been damaged in the sum of $5,000 and had filed a claim with the city which had been rejected, and they prayed judgment for that amount.
Although stated in appellant’s abstracts and briefs with particularity as to the facts in each case, the question involved is whether the building of a viaduct thirty-six feet wide in the center of an eighty-foot street constitutes a change of grade where a sufficient portion of the original street is left at the established grade on each side of the viaduct so that abutting owners have access to their property, and when the abutting owner does not claim that access to his property from another adjoining street is not cut off but does claim that the street on which the viaduct was built furnished him his most convenient means of access and the viaduct interfered therewith.
Appellant calls attention to the rule that where a city is authorized to change the grade of a street it is not liable to an abutting property owner for damages in the absence of a constitutional or statutory provision making it liable (Methodist Episcopal Church v. City of Wyandotte, 31 Kan. 721, 3 Pac. 527, and Glover v. State Highway Commission, 147 Kan. 279, 77 P. 2d 189) and to the fact that there is such a statute applicable to it (G. S. 1949, 13-1019, et seq.), but it contends that the erection of the present viaduct did not result in any change of grade. It states the specific question is one of first impression in this state, although the rules of law and public policy by which it must be determined have long been in effect and'compel a decision in its favor. It argues that an abutting owner has no vested interest in the maintenance of a public way beyond his right to have reasonable means of ingress to and egress from his property (Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341); that cities of the first class are given the right to vacate any street or alley or portion thereof (G. S. 1949, 13-443) and that such cities are constantly regulating the streets by installing traffic signs, rerouting traffic, regulating parking and in general exercising governmental control over the streets and that the courts may take judicial notice thereof (Johnson v. Funk, 132 Kan. 793, 297 Pac. 670) and, inferentially that abutting owners have no cause of action on ac count thereof, and it argues that when the entire width of the street is left accessible at the original established grade, an abutting owner cannot be said to have been damaged by a viaduct which does not deny him that access. Citing railroad cases (K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, 16 Am. St. Rep. 479, and Sharp v. The El Dorado & S. F. Rly. Co., 123 Kan. 397, 255 Pac. 1118) both dealing with construction of grades as restricting right of ingress and egress, where it was held that damages to an abutting owner are only recoverable where ingress and egress are denied, it argues that an abutting owner is entitled only to reasonable ingress to and egress from his property, that the instant petitions disclose that the owners do have ingress and egress and therefore their petitions fail to state a cause of action.
However persuasive the appellant’s argument may be, the fact remains that the legislature saw fit to give the city the power to establish the grade of its street, and provided if that established grade be changed, for the assessment of damages caused to property owners by reason of such change (G. S. 1949,13-1019, et seq.). The question is not whether a means of ingress and egress remains in the appellees, although that may enter into the amount of damage, but whether, under the statute, there has been a change of grade, bringing the statute into action; or stated another way, do the admitted facts show there was a change of grade so that appellees may prove and recover their damages, if any? The failure of the city to follow the course of procedure outlined in the last cited statutes, will not preclude the owners from maintaining these actions (City of Topeka v. Sells, 48 Kan. 520, 29 Pac. 604).
No decision of this court is cited by either party which deals with the precise question whether a viaduct occupying only a part of the street may be said to result in a change of grade, but authority from other jurisdictions is not wanting. It may be observed first that with references to viaducts generally it has been held in many jurisdictions that the erection over a street of an elevated viaduct, intended for general use, is a legitimate street improvement equivalent to a change of grade. See e. g. Sauer v. New York, 206 U. S. 536, 544, 27 S. Ct. 686, 688, 51 L. Ed. 1176; Menut & Parks Co. v. St. Johnsbury, 114 Vt. 41, Syl. ¶ 4, 39 A. 2d 342, 156 A. L. R. 404; Dillon, Municipal Corporations, 5th Ed., Vol. 4, p. 2930, and cases cited; 63 C. J. S. 972; 18 Am. Jur. 831. And see our statutes authorizing cities of the first class, of which Atchison is one, to require railroad companies to erect viaducts over streets, and to fix
the width and height of any such viaduct and the approaches thereto, and where it is provided that the proceedings for determining damages arising from the construction shall be the same as provided by law for the purpose of determining damages to property owners by reason of the change in grade of a street, the damages to be paid by the railroad company. G. S. 1949, 12-1633 and 13-1903.
With respect to viaducts which occupy only a part of the width of the street, we note the following decisions and authorities.
In a case decided in 1879, Stickford v. City of St. Louis, 7 Mo. App. 217 (Aff. 75 Mo. 309), it was held that charter provisions for damages from change of grade of a street applied to a case where the change did not extend to the whole width of the roadbed.
In People v. Hennessy, 142 N. Y. S. 839, 157 App. Div. 786, it was held:
“Where a municipality established a bridge under a statute requiring it to be higher than the old bridge, and for that reason built a viaduct over the street approaching the bridge, the grade of the street was changed, although the viaduct did not cover its whole surface, but left a portion at the original grade.” (Syl. If I-)
We shall not review at length the opinion in People ex rel. Crane v. Ormond, 221 N. Y. 283, 116 N. E. 993, where the construction of a viaduct did not change the surface of the street except by the presence of columns supporting the viaduct, and the question was whether a change of grade resulted, the court, in answering certain certified questions, said, in part:
“Wholly independent of the authorities upon the subject we are of the opinion that it did. It is true that the original surface of the street was not altered except by the erection of the pillars. It is true that pedestrians and vehicles may still pass over it. But practically and substantially One Hundred and Fifty-fifth street as now used passes on a level fifty feet or more above the Sauer property. This is the level adopted by travel east and west. To the street so used access was denied to Mr. Sauer. Necessarily his damage was great.” (1. c. 287.)
Liddick v. Council Bluffs, 232 Iowa, 197, 5 N. W. 2d 361, was an action to enjoin construction of a viaduct, the plans for which showed that when constructed, it would not occupy the entire street. The court held:
“Where a street has been duly established and it is proposed to erect a viaduct longitudinally over said street, with cement columns in said street, and where such construction will interfere with the rights of abutting property owners, it is held that such construction cannot be made without compensation first being made to said owners.” (Syl. f 1.)
In City of Ashland v. Queen, 254 Ky. 329, 71 S. W. 2d 650, the actions considered were for damages growing out of the construction of a viaduct by the state highway commission under an agreement between it, the county, the city and two railroad companies, the abutting property owners contending that the erection of a viaduct thirty feet wide leaving roadways on either side, where the inclines were solid masonry and the viaduct was built on steel piers resting on concrete bases, constituted a change of grade. Without further detail of the facts, nor any review of the authorities cited, which include matters not before us, we note that the court concluded that the fact the floor of the highway was elevated on trestle work did not change the structure from the nature of a street and that compensation could be recovered from the city for damages resulting to adjacent property by regrading of an established street or by making and using improvement for public purposes.
In McQuillin, Municipal Corporations, 3d Ed., vol. 13, p. 614, in discussing the nature and extent of the change of grade, it is said:
“A change need not be of the whole width of the street, or of the whole part previously wrought, in order to entitle an abutting owner to damages. A substantial change of a part is sufficient.”
In an annotation in 156 A. L. R. 416, on what physical construction amounts to a change of grade within a statute relating to award of damages, it is said in subdivision IV, page 418, that a change of grade of the street need not be a physical change of the entire width, anymore than it need not affect the entire length, and that a change of grade of a portion of the width of the street in front of the land of the owner comes within the statutory provision. Attention is directed to the cases therein cited as well as those cited in subdivision V, and not mentioned above.
Both parties comment on our decisions in The State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772, and Parker v. City of Atchison, 46 Kan. 14, 26 Pac. 435, 30 Am. St. Rep. 845, but in our opinion what is there said is too tenuous to be the basis for our determination of the problem presented by these appeals and those decisions will not be discussed. Other decisions cited by each party and not mentioned herein have been examined but in our opinion they are not controlling either directly or by analogy.
In our opinion the trial court did not err in overruling the city’s demurrer to the plaintiffs’ petitions, and its rulings and judgments are affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original action in quo warranto in which plaintiff Driscoll seeks a determination of the right of defendant Hershberger to hold office as a member of the board of regents, to have Hershberger ousted from the office and to have plaintiff Driscoll declared entitled to and recognized as a member of the board.
In his petition plaintiff alleges that the defendants other than Hershberger constitute the board of regents, which was organized and existing under and by virtue of G. S. 1949, 74-3201 (Laws 1939, ch. 289); that plaintiff was first appointed as a member of the board by Governor Schoeppel on July 17,1943, for a term expiring December 31, 1945, the appointment being confirmed by the senate of the state of Kansas; that thereafter he was reappointed by Governor Schoeppel as a member of said board on December 31, 1945, for a term expiring December 31, 1949, the appointment being confirmed by the senate; that thereafter and on December 30, 1949, he was again appointed by Governor Carlson as a member of the board for a term of four years expiring December 31, 1953, and a commission therefor was duly issued to him; that appointments as members of the board are, under the above statute, made by the governor with the advice and consent of the senate, and that his appointment on December 30, 1949, was made at a time when the senate was not in session; that by reason of the statute he is entitled to hold his office for a term of four years and until his successor has been appointed and qualified and until the senate has acted thereon, and that it was the duty of the governor to submit plaintiff’s appointment by Governor Carlson to the senate for consideration and affirmative action in confirming or rejecting the appointment.
Plaintiff further alleged at length that on March 21, 1951, at the regular session of the legislature Governor Arn submitted to the senate a list of thirty-seven appointees, including some to the board of regents and some to other offices, but included in which was that of “27. Herb Barr, Leoti (appointed 3-20-51), member of the State Board of Regents for the term expiring December 31, 1953. Vice Jerry E. Driscoll.” as disclosed by the journal of the senate. He then directs attention to rule 56 of the senate that nominations by the governor shall be referred to appropriate committees for report and after report shall be considered in executive session, and alleges that as disclosed by the senate journal on March 22, 1951, the committee to whom the nominations were referred filed its report recommending confirmation; that on March 28, 1951, the senate, in executive session took action, the senate journal being quoted. In substance it shows that the chairman of the committee reported, recommending confirmation of the appointments, but that on motion of Senator Woodward no action was taken on nomination 27. The other nominations were confirmed and the executive session was dissolved. (It is here observed that the applicable statute, hereafter reviewed, uses the words “appoint” and “appointments” and not the words “nominate” and “nominations”.)
Plaintiff further alleges that the governor failed to submit and did not submit to the senate for its action, his appointment by Governor Carlson on December 31, 1949; that the governor did submit other nominations but failed to include only that of the plaintiff and by reason of such failure his appointment was never before or considered by the senate and when it adjourned sine die on March 31, 1951, it had taken no action on his appointment, and by reason thereof plaintiff was and is a duly appointed, qualified and acting member of the board of regents and entitled to so act until the senate shall have affirmatively taken action either to confirm or reject his nomination, or until his term expires on December 31, 1953. He further alleged that on April 12, 1951, Governor Arn purported to appoint defendant Hershberger as a member of the board of regents and issued him a purported commission for a purported unexpired term ending December 31, 1953; that for reasons previously set forth there was no vacancy existing and the purported appointment was null and void.
The plaintiff’s allegations as to what occurred at the next meeting of the board of regents on April 20, 1951, and subsequent thereto, need not be detailed.
The defendants, except Hershberger, filed an answer containing a qualified general denial and they then alleged facts, as distinguished from conclusions, about as set forth in the petition. They alleged at length that the submission of the Barr appointment brought to the attention of the senate the appointment of plaintiff; that it was unnecessary for the governor to submit plaintiff’s name to the senate for the reason it was authorized on its own initiative and without advice of the governor to investigate concerning recess appointments and to confirm them if it desired and that it did make such investigation and failed to confirm the appointment of plaintiff, and they alleged that in connection with the investigation the journal of the senate needed to be supplemented and they then pleaded at some length various motions made to confirm plaintiff’s appointment, which never reached a vote or on vote were not carried. They further answered that the appointment of plaintiff by Governor Carlson on December 30, 1949, was only until the next regular or special session of the legislature; that the senate adjourned sine die on March 31, 1951, without confirming plaintiff’s appointment; that a vacancy existed and that any right plaintiff had as a member of the board terminated. They prayed that plaintiff take nothing and that Hershberger be adjudged to be the regularly appointed, qualified and acting member of the board of regents.
Hershberger filed a separate answer which for present purposes may be said to contain, in substance, the same allegations as those of the answer of the other defendants.
Plaintiff filed motions directed against each of these answers that certain allegations be stricken on the ground they were incompetent, irrelevant and immaterial, were conclusions of law and not of fact, constituted redundant and surplusage matter, or stated facts which did not constitute a defense. We shall not detail the allegations attacked. Even though there may be some merit in parts of the motions, those parts need not be pointed out nor a specific ruling made thereon for our decision is not based on the allegations attacked, and specifically, not upon any claimed supplements to the record as disclosed by the journal of the senate.
The cause is submitted to us on a motion of plaintiff for judgment on the pleadings.
As the pleadings disclose, the present controversy involves appointment as a member of the state board of regents, hereafter referred to generally as the board. The board was first created by Laws of 1925, chapter 259, later appearing as G. S. 1935, 74-3201, which provided it was composed of nine members who shall be appointed by the governor, that the terms of those first appointed shall be for specified varying terms and upon the expiration of such terms, succeeding regents shall be appointed for a term of four years and until their successors shall have been appointed and qualified, and in case of vacancy, the governor shall appoint and fill the vacancy for the unexpired term. We point out that in that statute no provision was made fixing any qualifications of persons to be appointed nor that any appointment was to be made with the advice, confirmation or approval of the senate of the state or any other person, board or authority.
The above statute was amended by Laws 1939, chapter 289, later appearing as G. S. 1949, 74-3201, and it is this statute which is presently involved. This statute provides for a board of regents of nine members to be appointed by the governor “with the advice and consent of the senate” of whom five were to be appointed from one political party and four from another, as specified, and, in general that when the new members have qualified, the terms of the then present members shall be terminated and they shall surrender their offices and all right and authority by virtue of their office to the new members. The statute then continues:
“. . . (1) Upon the expiration of the terms of such members first appointed as members of the board of regents created by this act as aforesaid, each succeeding member shall be appointed by the governor with the advice and consent of the senate, and shall hold his office for a term of four years, and until his successor shall have been appointed and qualified. (2) Whenever appointments to the board of regents are made when the senate of the state of Kansas is not in session such appointments shall hold until the senate has acted thereon. (3) If the senate shall fail to approve such appointment, the governor shall make a new appointment to fill out the unexpired term of such member who has failed of confirmation. (4) All vacancies in the board shall be filled by appointment by the governor for the unexpired term subject to confirmation by the senate at the next regular or special session of the legislature. . . .”
The numbers shown do not appear in the statute and are inserted for reference thereto later herein. The remaining part of the statute is not reviewed because not of present importance.
In support of his contention that he is now a member of the board of regents and entitled to a judgment of this court to that effect, plaintiff first directs our attention to facts not in dispute and including that prior to 1949 he had twice been appointed to the board by the then governor and that the appointments had been confirmed, and that he was appointed for a third term on December 30, 1949, for a term of four years by the then governor and a commission was issued to him; that the senate was not then in session; that at the next and 1951 session of the legislature the then governor did not submit his appointment of December 30, 1949, to the senate for its action thereon and the senate did not, on its own initiative, ever take any action thereon; that the legislature adjourned March 31, 1951; that thereafter and on April 12, 1951, the governor appointed Hershberger and issued him a commission for the term expiring December 31,1953.
Plaintiff opens his argument by calling attention to the rule that a statute should be so construed that effect shall be given if possible to every clause and section of it, and that no clause or part of it shall be treated as superfluous. That rule, stated in Barrett v. Duff, infra, and cases cited therein, is conceded to be correct. The substance of his argument is that pursuant to his appointment to the board on December 30,1949, and the commission issued to him, plaintiff entered into the office as a duly appointed and acting member thereof; that under the law his appointment vested in him the right to hold office for the four-year term to which he had been appointed, subject only to his appointment being defeated by a non-concurrence or rejection by the senate; that when he was appointed in December, 1949, by Governor Carlson neither he nor any successor had any control over the appointment until the appointment had been rejected by the senate; that the term of office is fixed by statute and no power of removal exists, and that the governor was powerless to remove him or create a vacancy in the office he held except by a lawful proceeding and for cause. He argues further that when the senate is not in session, the governor has power to make appointments at the end of terms or to fill vacancies, but no power to appoint a successor unless there is such a vacancy, and that, the governor has no power to create a vacancy. He also argues that once a governor has made an appointment and issued a commission (when the senate is not in session) neither the governor making the appointment nor his successor, has any right to revoke the appointment, although if the senate later refuses confirmation of the appointment a vacancy would exist. He further contends that under the statute his last appointment “shall hold until the senate has acted thereon;” that the senate did not act thereon; that the phrase quoted means an affirmative action; that there was none, and it may not be said there was any failure of confirmation. After making some comment that it is not the province of the senate to ferret out the names of appointees, particularly where the governor has submitted a list such as was submitted here, he argues that it cannot be contended it was the duty of the senate to initiate such an inquiry; that if there was any dereliction it was when the gov ernor failed to transmit a complete list of appointments made by his predecessor without alteration or modification. He does not contend that the statute before us, or any other applicable statute, requires that the incumbent governor submit to the senate for its action appointments made by his predecessor. Plaintiff summarizes his argument thus:
“1. The plaintiff is not only the incumbent in office, but he has been legally appointed at a time when the appointing power had a right to act and his appointment has never been legally rejected, cancelled or revoked by the Kansas State Senate, the only body that had the legal authority to revoke, cancel or reject such appointment.
“2. The purported appointments of Herb Barr and the defendant A. W. Hershberger were made at a time when no vacancy existed, when the appointing power (Governor Carlson) had already acted, and Governor Arn could not then revoke an appointment already made.
“3. The plaintiff as present incumbent does, under the provisions of the statute, hold his office until the expiration of the term for which he was appointed by Governor Carlson on December 30, 1949, unless rejected by the Senate at some special or regular session of that Body.”
In support of his main contentions, plaintiff relies on our decisions in Barrett v. Duff, 114 Kan. 220, 217 Pac. 918, and The State, ex rel., v. Matassarin, 114 Kan. 244, 217 Pac. 930, both decided in July, 1923. Our attention is also directed to State, ex rel., McCarthy v. Watson, 132 Conn. 518, 45 Atl. 2d 716. We are of the opinion that the present action is determinable under our own statutes and decisions, and the last case, and other decisions from other jurisdictions, will not be reviewed.
The opinion in Barrett v. Duff, supra, decided three separate actions involving three different appointments by the governor. Motter had been appointed state oil inspector for a term of four years, beginning March 31, 1921, and the appointment was confirmed by the senate. Motter resigned and on October 18, 1921, Duff was appointed and commissioned for the unexpired term ending March 31, 1925. On January 27, 1922, Crawford was appointed and commissioned as a judge of the court of industrial relations for a term ending February 1,1925. On March 20,1922, Greenleaf was appointed and commissioned as a member of the public utilities commission for a three-year term ending March 18, 1925. Each of the last three appointments was by Governor Allen when the senate was not in session and the appointees entered upon their duties and were acting when Allen’s term expired on January 8, 1923. On January 9, 1923, the legislature convened and on January 16, 1923, the senate adopted a motion to consider recess appointments and the appointments were referred to a committee. Subsequently, but before March 7, 1923, the incoming Governor Davis transmitted to the senate the names of Barrett, Goodrich and Rice for appointment to the positions held by Duff, Crawford and Greenleaf, respectively, and issued to his appointees papers in form and intent to commission them. On March 7, 1923, the senate confirmed the appointment of Duff, Crawford and Greenleaf, and actions in quo warranto to determine title to the three offices were commenced by the appointees of Governor Davis. The court first considered whether the naming and commissioning of the defendants to their respective offices were appointments or nominations, a question not raised in the instant case, but we do note that in connection this court directed attention to the statutory provision that with respect to the office of state oil inspector the governor shall appoint some suitable person “whose term, when confirmed by the senate, shall be for four years from April 1, 1913, and until his successor is appointed and qualified, unless sooner removed by the governor; and he may be removed at any time for cause” (Laws 1913, ch. 200, § 2); that with respect to the court of industrial relations, the judges shall be appointed by the governor “by and with the advice of the senate” and “in case of vacancy in the office of judge . . .
the governor shall appoint his successor to fill the vacancy for the unexpired terms” (Laws 1920, ch. 29, § 1) and that with respect to appointments of the public utilities commission, provisions substantially the same as those for the court of industrial relations are made (Laws 1921, ch. 260, § 1). The court said that the governor having the power of appointment and having appointed and commissioned the defendants, they became vested with the powers and prerogatives of their respective offices and the governor was powerless to remove them or to create vacancies in the offices they held except by a lawful proceeding and for cause. It then determined that defendants, having been commissioned and their appointments having been confirmed by the senate, there was a presumption that they, being incumbents and in possession of their offices, had the right to hold them until someone with a better title demanded possession. Directing attention to the fact the statute made no specific provision for filling a vacancy in the office of oil inspector, it was said the law contemplates and dispatch of public business requires that the office be filled and that the executive could fill the vacancy. It was also said with respect to the board of public utilities and the court of industrial relations that the legislature had made provision for succession in office of the incumbents, requiring terms expiring at different dates so that the membership include at all times men of experience, and that on the expiration of a term of office the governor should appoint, at once, in order that there be no vacancy in office. On the question whether the plaintiffs had shown any legal right to the offices, it was said that the sending of their names to the senate by the governor did not operate to create vacancies; that the power of removal from office was not incidental to the power of appointment and the power to appoint did not arise until there was a vacancy in fact. The court, after stating that the power of the governor having been exercised, he had no further control over the respective offices unless and until the appointees had been rejected by the senate, stated that if Governor Davis had submitted the names of defendants and indicated that he desired they be rejected and that had happened, he could have filled the vacancies. It then considered the contention of plaintiffs, that defendants’ names not having been submitted to the senate for approval, the approval by the senate on its own initiative lacked validity. This was denied, it being said that the senate could take legislative notice of the recess appointments by a preceding governor not submitted or transmitted to them by the incumbent governor. The judgment of the court was in favor of the defendant appointees holding under the recess appointments.
In The State, ex rel., v. Matassarin, supra, the action was by the state to determine membership of the state board of health and who was entitled to the office of secretary of the board and arose under Laws 1903, chapter 357, appearing as G. S. 1915, § 10119, which for our purposes, reads:
“Within thirty days after this act shall take effect, the governor, by and with the advice and consent of the senate, if it then be in session, shall appoint from the different parts of the state nine physicians, . . . Upon the appointment of the persons provided for in this act, the secretary of state shall issue to each of them a certificate of his appointment, and within twenty days after such appointment the said ten persons shall meet in the city of Topeka, . . . and thereupon said board shall immediately organize by electing one member of the board president. . . . The board shall also elect a secretary, and said secretary shall be the executive officer of said board, but not a member thereof. ... It shall be the duty of the governor to fill all vacancies which may occur in the board; and all appointments whether original or to fill vacancies, made during the recess of the legislature, shall be submitted by the gov ernor to the senate at its first session after such appointment is made, for its action; . . . (I. c. 250.)
We shall not review the extended statement as to the recess appointments made by Governor Allen, which were submitted to the senate but not acted upon, recess appointments later made by Governor Allen, but which were not submitted to the senate by his successor, Governor Davis, the attempted revocation of appointments by Governor Davis and the naming of new appointees by him, nor as to the selection of a secretary of the board, reference to the opinion being made therefor. In rendering judgment for the plaintiff and as reflected more fully by the syllabus, this court held that the appointments of members made by Governor Allen, although not acted upon by the senate and which had never been rejected by it, entitled them to hold their offices to the end of their terms or until their appointments were considered and rejected by the senate; that in making such appointments it was the duty of the governor to transmit them to the senate for its action, and if made when the senate was in recess it was his duty to transmit them at the first session of the senate thereafter, and where the governor appoints members for a full term during a recess and the appointments are not transmitted to or acted upon by the senate at the ensuing session, the offices do not become vacant and the governor is without power to revoke their appointments by reason thereof. Other holdings require no present notice.
The above review discloses that each of the above decisions turned on the statutes under which the appointments were made and it is hardly debatable that if the statute under which the present plaintiff received a recess appointment on December 31, 1949, for a term ending December 31, 1953, was of the same tenor and effect as the statutes involved in those two cases, plaintiff would be entitled to hold office until his appointment was adversely acted upon by the senate or until it expired by lapse of time.
Attention has heretofore been directed to the original act creating the board of regents and, among other things, that the appointments made were not subject to the advice, consent or approval of the senate or any other body or authority. When, in 1939, the legislature determined to amend the original act, it was aware that the original act contained no provision that the membership include persons belonging to different political parties, about which we are not presently concerned, and that it did leave to the governor alone the matter of appointments. It considered both of these in amend ing the act. It was also aware of the difficulties arising from other statutes where advice, consent or approval of the senate to the governor’s appointees was required and of the disposition made in the two cases reviewed. And so it attempted in the amending act, heretofore quoted, to encompass every situation which it conceived might occur.
It is unnecessary that we again review unquoted portions of the amending statute (G. S. 1949, 74-3201) as to the composition of the first board to be appointed, and that appointments of the governor thereto are with the advice and consent of the senate. Nor need we do more than refer to the fact the statute used the words “advice,” “consent,” “approval” and “confirmation” somewhat as though they were synonymous. The portion quoted above includes all parts of the statute relied on by plaintiff or the defendants. Referring to the first and second quoted sentences it may be said in short that they provide (1) that upon expiration of the terms of those first appointed, successors shall be appointed by the governor, with advice and consent of the senate, for a term of four years and until successors shall have been appointed and qualified, and (2) that if the senate is not in session when the appointments are made they shall hold until the senate has acted thereon. Plaintiff stresses the language of these two sentences, directs attention to his recess, appointment, and that the senate did not act upon it and argues that he is still a member of the board. Were that all of the statute we could agree. But it is not all and we are not permitted under the rules of statutory construction to treat any part of a statute as superfluous. The third sentence provides that if the senate shall fail to approve the appointment, the governor shall make a new appointment to fill out the unexpired term of the member who failed of confirmation. Plaintiff argues that there was no failure to approve his appointment; that the clause refers to and means an affirmative action and occurs only when the senate, voting thereon, refuses to approve or consent. The word “fail” as defined in Webster’s New International Dictionary, second edition, includes:
“1. To be wanting; to fall short; to be or become deficient in any measure or degree; . . .
“2. To be affected with want; to come short; to lack; . . .
“5. To be found wanting with respect to an action, a duty, an effect, etc.;
“a. . . .
“b. To come short of a result or object aimed at, desired or attempted;
The use of the word “fail” in the above sentence and the context of the whole sentence leads to a conclusion that what is meant is that if the appointee is not “approved” he “fails” of approval. Under the undisputed facts there is no question that the appointment of plaintiff on December 31, 1949, was not approved by the senate, and we hold that by reason of the above statute, he failed of approval or of confirmation. When the 1951 legislature adjourned and at that session the senate had failed to approve plaintiff’s appointment, a vacancy existed, which, under the fourth sentence of the provisions above quoted, the governor was empowered to fill, as therein provided.
In view of the conclusion stated in the preceding paragraph, it is not necessary that we further discuss the power of the governor to create a vacancy in the board or the effect of the naming of Barr as a successor to plaintiff. It is implicit in what has been said that the governor has no such power. If there is a vacancy it occurs only in the sequence of events and as provided by the statute. The submitting of Barr’s name to the senate was at a time when plaintiff’s term had not yet expired and when there was no vacancy to be filled. Under the statute, the submission of Barr’s name to the senate was ineffectual.
It is apparent from the record that plaintiff received a recess appointment as a member of the board of regents in 1949 and that his appointment was not approved by the senate at the next succeeding or 1951 session of the legislature; that the senate having adjourned without approving plaintiff’s appointment, a vacancy in the ofiice occurred; that Hershberger was thereafter appointed for the unexpired term and duly qualified, and has since been acting as a member of the board.
The judgment of this court is that the plaintiff be denied the relief prayed for by him and that defendants have judgment in their favor and specifically that defendant Hershberger be and he is declared to be a duly appointed member of the state board of regents and to have and perform all of the rights, powers, duties and authority incident thereto under the laws of this state. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by a son against his father to recover for damage to the son’s automobile as a result of being compelled “to take to the ditch” in order to avoid a head-on collision with an automobile driven by the father as the two cars approached each other from opposite directions at the crest of a hill. The theory of plaintiff’s case was that defendant was driving “in the middle of the road,” thus forcing plaintiff to swerve his car abruptly to the right in order to avoid a collision. The cars did not hit.
Defendant’s theory, as alleged in his answer, was that both he and plaintiff were driving in the middle of the road, but that plaintiff had ample room to pass defendant’s car without going into the ditch, and that plaintiff was guilty of contributory negligence in seven particulars, among them being excessive speed.
Defendant’s answer further alleged:
“For further answer, defendant alleges that plaintiff has no legal right, or appointment of authority, to maintain this action because he is not the real party in interest; and, further, said plaintiff has no beneficial interest herein and has been fully compensated for the damages caused by said accident, by the Farmers Insurance Exchange, a foreign corporation, whose home office is Los Angeles, California.”
Plaintiff moved to strike this allegation on the ground that even if true it would not constitute a legal defense to plaintiff’s cause of action.
. This motion was sustained.
The case was tried by the court without a jury, resulting in a judgment for plaintiff in the sum of $572.60.
Defendant’s motion for a new trial being overruled, he has appealed, and specifies as error the rulings of the court (1) in sustaining the motion to strike the quoted allegation from the answer; (2) in overruling the demurrer to plaintiff’s evidence; (3) in rendering judgment for plaintiff; and (4) in overruling the motion for a new trial.
Defendant died subsequent to the appeal and it has been revived in the name of the special administrator of his estate.
In their brief counsel for plaintiff (who did not represent plain tiff in the court below) advise us concerning the nature and type of automobile insurance policy allegedly carried by plaintiff. However, since those matters do not appear in the record they must be disregarded. In passing upon the propriety of the lower court’s action in striking from the answer the allegation above quoted we confine ourselves to the pleadings as they appear.
The code (G. S. 1949, 60-401) requires that every action be prosecuted in the name of the real party in interest.
The stricken portion alleged that plaintiff was not the real party in interest. The petition contained no allegations tending to indicate that he was not — therefore the question was not one to be raised by demurrer. It was properly a matter to be raised by answer, as was done. (Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498; Hill v. Leichliter, 168 Kan. 85, 211 P. 2d 433, and Mehl v. Carter, 168 Kan. 342, 345, 212 P. 2d 227.)
In Klingberg v. Atchison, T. & S. F. Rly. Co., 137 Kan. 523, 21 P. 2d 405, the action was one to recover damages for the destruction by fire of an elevator and warehouse property alleged to have been caused by the negligent operation of defendant’s railway engine. An allegation in the answer to the effect that plaintiffs’ loss was fully covered by insurance, that they had collected the full amount thereof and therefore were not the real parties in interest and. could not maintain the action, was stricken on plaintiffs’ motion. This court held such ruling to be erroneous and that it was proper for defendant to plead such allegation as a defense.
The Hill case, supra, was an action to recover for the destruction of standing wheat allegedly caused by a fire started when defendant drove his automobile through plaintiffs’ partially harvested wheat field. The answer alleged that plaintiffs had fire insurance coverage on their wheat, that they were compensated in full for their loss and therefore were not the real parties in interest. Plaintiffs’ motion to strike this allegation was overruled. We approved such ruling and held that it was a proper defense.
Ry the code (G. S. 1949, 60-710) a defendant may set forth in his answer as many grounds of defense as he may have. (State, ex rel, v. Leopold, 172 Kan. 371, 240 P. 2d 138.) That a party plaintiff is not the real party in interest is a proper defense. The effect of the ruling in question was to deprive defendant of such defense, and under the rule announced there can be no question but that it was error for the court to sustain the motion to strike.
Counsel for plaintiff concede the point but contend that the error was a harmless one and that under the facts of this case could not and did not result in any prejudice, particularly in view of the fact that (as it is argued) the trial court and counsel for both sides knew that plaintiff was covered by a “fifty-dollar deductible” policy and that he had been compensated for the full amount of his claim, less the sum of $50 which he himself had paid. However, as heretofore stated, those matters are not a part of the record and will not be considered.
In view of our ruling it becomes unnecessary to discuss other alleged errors. The judgment of the lower court is reversed with directions to reinstate in the answer those allegations erroneously stricken, and for further proceedings consistent herewith. | [
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The opinion of' the court was delivered by
Price, J.:
This is an appeal from an order overruling a demurrer to an amended petition in an action for damages for breach of an alleged oral contract for the sale of certain real estate in the city of Hutchinson.
The question is whether a written memorandum (hereinafter set out) is a sufficient compliance with the statute of frauds.
The factual background of the matter, as alleged in the amended petition, is as follows:
Plaintiffs Clark and Musser are residents of Hutchinson and Kansas City, Missouri, respectively. Defendant is a resident of Wichita. For some time prior to March 31, 1950, plaintiffs were the owners of and were in possession of six lots in the city of Hutchinson known as 405 East A, such property being a well-improved tract on a corner of the intersection of Avenue A and Elm Street. Prior to that date they had advertised the property for sale and had placed it in the hands of Scott Clark, husband of one of the plaintiffs, with oral authority to sell. On March 31, 1950, defendant came to Hutchinson for the express purpose of purchasing a residence property, and, through a mutual acquaintance, contacted Scott Clark. Clark and defendant then went to the property, at which time defendant made a careful inspection of the same, including the improvements, and they agreed on a purchase price of $17,000 — $1,000 to be paid down, $7,000 to be paid on approval of abstract of title, and the balance of $9,000 to be paid in five years with interest at the rate of five per cent per annum. At the suggestion of defendant he and Clark then went to the latter’s office for the purpose of consummating the agreement of purchase and sale. Defendant produced his checkbook on The Security Bank of Blackwell, Oklahoma, and requested Clark to make out a check for the down payment and showing the substance of their agreement. Clark did as requested, and defendant signed the check and delivered it to Clark. This check, including notations on it, a copy of which was attached to the amended petition as an exhibit, is as follows:
“No. 45
Blackwell, Oklahoma, Mar. 31, 1950
Pay to the Order of............................Opal E. Clark $1,000.00
One Thousand & no/100.....................................DOLLARS
To apply on 405 East ‘A’ @ $17,000.00 bal. of $7,000.00 to be paid on approval of abstract & $9,000.00 to be paid in 5 years @ 5 %.
Jno. P. Larkin
To The Security Bank
Blackwell, Oklahoma.”
Plaintiffs, in due course of business, deposited the check, properly endorsed, with a bank in Hutchinson. In the meantime defendant caused payment of the check by the Blackwell bank to be stopped. Upon inquiry as to the reason therefor he advised plaintiffs that due to his wife’s request and insistence he was refusing to go through with the deal.
Plaintiffs caused the abstract of title, which showed a good and merchantable title, to be certified to date, and executed and acknowledged a warranty deed conveying the property to defendant, and tendered same, which offer and tender defendant refused. Plaintiffs then advised defendant that they would proceed in good faith to sell the property for the best amount reasonably obtainable and would expect to hold defendant liable for the difference, if any, between the net proceeds from such sale and the sum of $17,000, together with interest. Defendant ignored this notice. Plaintiffs kept the property on the market, advertised it for sale, and subsequently fisted it with the Real Estate Board of Hutchinson. As a result, on September 13, 1950, plaintiffs sold the property to one Pickerill for the gross sum of $15,000, upon which they paid the customary real-estate commission of five per cent, leaving a net amount of $14,250. Plaintiff’s action is to recover the sum of $2,750, with interest from March 31, 1950.
The real estate in question was the only real estate owned by plaintiffs which was known and described as 405 East A, and was the only tract with that description placed for sale with Scott Clark.
In this court defendant contends, as he did in the court below, that the memorandum (check) is too indefinite and uncertain to take the alleged oral agreement for the sale of the property out of the statute of frauds (G. S. 1949, 33-106), the pertinent portions of which read as follows:
“No action shall be brought whereby to charge a party upon . . . any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . unless the agreement upon which such ac tion shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, . .
The general rule as to the sufficiency of a written memorandum to meet the requirement of the statute is as follows:
In 49 Am. Jur., Statute of Frauds, it is said:
“Generally speaking, a memorandum in writing meets the requirements of the statute of frauds that certain contracts shall be evidenced by writing if it contains the names of the parties, the terms and conditions of the contract, and a description of the property sufficient to render it capable of identification.” (§ 321, p. 635.)
“A memorandum sufficient to satisfy the requirement of the statute of frauds must be complete in itself as to the parties charged with liability thereunder and the essential terms of the contract. The memorandum cannot rest partly in writing and partly in parol; that is to say, a deficiency in the memorandum cannot be supplied by parol evidence. But parol evidence is admissible to explain ambiguities, and to apply the instrument to the subject matter.” (§ 322, p. 636.)
In Restatement, Contracts, § 207, the general rule is stated thusly:
“A memorandum, in order to make enforceable a contract within the Statute, may be any document or writing, formal or informal, signed by the party to be charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty,
(a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and
(b) the land, goods or other subject-matter to which the contract relates, and
(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.”
On the question whether a check- may constitute a sufficient memorandum under the statute see § 332, pp. 643, 644, 49 Am. Jur., supra, and the annotation at 153 A. L. R. 1112, to the effect that a check, given in connection with the sale of lands, bearing notations or references to papers or matters which, by the rules of contract and evidence, may properly be deemed a part thereof, and which contains the essential terms of the contract of sale, is sufficient.
Applying the foregoing general rules to the instrument before us, we think that defendant’s contentions, if sustained, would lead to a too technical and strained construction of the statute and would defeat the very reason for its enactment.
In the nature of things and in the light of common, everyday business dealings, the check and notations upon it clearly indicate that defendant, as maker, was purchasing from payee, as owner, certain real estate described as “405 East ‘A’,” for the sum of $17,000; that the amount of the check ($1,000) was a down payment; that the sum of $7,000 was to be paid upon approval of the abstract of title; and that the balance of $9,000 was to be paid in five years with interest on such latter sum at the rate of five percent. The names of the parties, as payee and maker of the check, are thus designated as seller and purchaser, respectively, with no uncertainty. There is nothing left to conjecture or speculation with respect to the purchase price, the amount being paid down, or as to when the balance of $16,000 was to be paid. To place any other construction on the instrument would do violence to the plain and ordinary meaning of the very language used.
Defendant strenuously argues that the location and identity of the property are not given with reasonable certainty, and that on account of the check being given on a Blackwell, Oklahoma, bank it is logical to assume the property is located in that city. It is true that nowhere on the check and its notation is the location of the property, as to city, county or state, listed.
On the other hand, it is to be remembered that by the allegations of the amended petition the property is specifically described as being located on a corner of the intersection of Avenue A and Elm Street in the city of Hutchinson, known as 405 East A. It is further alleged that it was the only real estate owned by plaintiffs known and described as 405 East A; that it was the only tract with that description placed for sale with Scott Clark, and that defendant personally inspected the same. In Hampe v. Sage, 82 Kan. 728, 109 Pac. 406, it was held that where it appears from extrinsic evidence that a vendor owns but one parcel of land answering the description in the memorandum, courts are inclined to uphold a meager description of the property, and further that:
“ ‘If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so described that the court can, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough.’” (p. 733.)
See, also King v. Stephens, 113 Kan. 558, 215 Pac. 311; Wing v. Mollett, 115 Kan. 116, 222 Pac. 88, and Nauman v. Powers, 147 Kan. 641, 78 P. 2d 27, on the general subject matter.
In Comment 9, under subdivision (b) of the rule in Restatement, quoted supra, we find the following:
“A and B enter into an oral contract for the sale and purchase of land owned by A on the corner of X and Y streets. A memorandum, otherwise sufficient, is signed by A and B, which described the subject-matter of the contract as ‘The land on the corner of X and Y Streets.’ There are four different lots at the intersection of those streets. A owns but one of them. The memorandum is sufficient. It is immaterial that neither the State nor the City where the land is situated is named.”
In 49 Am. Jur., supra, it is said:
“A writing which affords no means by which the property sold can be identified is not a memorandum sufficient to satisfy the statute. Thus, a recital in a check that it is given as payment for land is not a sufficient description of the subject matter of the contract to take the transaction out of the statute of frauds. However, the cases are substantially in agreement on the general proposition that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject matter. The terms may be abstract and of a general nature, if with the assistance of external evidence the description, without being contradicted or added to, can be connected with and applied to the very property intended, to the exclusion of all other property. . . .
“The circumstances that the seller owns only one tract of land which answers the description given in the memorandum operates to render sufficient a description which under other circumstances might be too general to satisfy the statute.” (§ 348, pp. 656, 657, 658.)
“A writing relied upon to constitute the memorandum must in and of itself furnish the evidence that the minds of the parties met as to the particular property which the one proposed to sell and the other agreed to buy; when such evidence is not found in the writing, it cannot be supplied by parol, but if it is found there, parol evidence of extrinsic circumstances may be resorted to for the purpose of specifically designating the property to which both parties are shown to have referred by the terms of the writing.” (§ 349, p. 658.)
We think that under the above rules there can be no question but that the description of the property as “405 East A” is sufficient to satisfy the statute. It cannot be said defendant is being in any way misled by the use of that description. He knew exactly the property for which he was bargaining, and that it was the property described by its street address on the check. The statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and courts will, so far as possible, refuse to allow it to be used as a shield to protect fraud and as a means to enable one to take advantage of his own wrong. (Hazen v. Garey, 168 Kan. 349, 212 P. 2d 288, and 49 Am. Jur., supra, § 578, p. 885.)
Holding as we do, that the memorandum in question is a sufficient compliance with the statute of frauds, the court did not err in overruling the demurrer to the amended petition, and its ruling is therefore affirmed.
Smith, J., concurs in the result. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages alleged to have been sustained when a bus operated by defendant came to a sudden stop and plaintiff was thrown against a rear vision mirror and injured. Judgment was for the defendant, sustaining its motion for judgment notwithstanding the general verdict on answers to special questions.
The petition alleged after the formal parts that plaintiff boarded a bus at an intersection and became a passenger for hire; that when he was in the act of paying his fare the operator of the bus, one Lake, caused it to start and suddenly stopped it, causing plaintiff to lose his footing and be thrown against the rear vision mirror, injuring him. The petition charged acts of negligence as follows:
“(a) In starting said vehicle without giving the proper signal and without first ascertaining that such starting or movement could be made with reasonable safety.
“(b) In stopping the bus with a sudden and violent jerk without warning to the plaintiff herein.
“(c) In operating said vehicle with a rear vision mirror which was broken and the edge thereof jagged, thereby causing a dangerous condition to defenddant’s passengers, and particularly to this plaintiff.”
The defendant answered denying each and every allegation in the plaintiff’s petition except that it was a corporation and operated a bus line in the city of Kansas City, Kan. The answer further alleged that if the plaintiff was injured the injuries were not caused by any act of negligence by the defendant but were caused by the negligence of the plaintiff because he knew that at that particular intersection there were many vehicles and the bus might be required to stop suddenly and he made no effort to protect himself against such change in traffic; that he failed to look and observe traffic in the intersection.
The reply was a general denial.
The. jury returned a verdict for $3,000 and answered special questions as follows:
“Ques. No. 1. Did the defendant’s bus, just prior to the time the plaintiff struck his head against the rear vision mirror, start up from the loading zone at the southeast corner of Minnesota Avenue on 10th Street and proceed subsfantially north? Answer: Yes.
“Ques. No. 2. As the bus approached the south curb-line of Minnesota Avenue, did a northbound automobile turn from the left of the bus in front of the bus so closely as to create danger of a collision? Answer: Yes.
“Ques. No. 3. Was the bus in danger of colliding with another vehicle when the operator put on the brakes and brought it to a stop? Answer: Yes.
“Ques. No. 4. Did the bus operator stop his bus in order to prevent danger of a collision with a vehicle that made a righthand turn from the left side of the bus? Answer: Yes.
“Ques. No. 5. Do you find that plaintiff’s injury was the result of an unavoidable accident? Answer: No.
“Ques. No. 6. When the driver of the bus started up from the loading zone, did he have any reason to anticipate that the driver of the automobile to the left of the bus would make a righthand turn in front of the bus, so as to require the operator to bring the bus to a sudden stop? Answer: Yes.
“Ques. No. 7. If you answer Question No. 6 'Yes,’ state in detail what the operator observed, or what he should have observed, that would have given him this warning? Answer: Driver, Mr. Lake, should have observed ap proaching car before moving bus, instead of moving bus 2 feet and then observing car at rear. In any event being 25 feet back from south curbline he should have been on alert to a possible right turn by approaching vehicle.
“Ques. No. 8. If you find a verdict in favor of the plaintiff, state each and every act of negligence of which you find the defendant guilty. Answer: Bus driver, Mr. Lake, failed to observe traffic before starting bus, after starting bus he observed traffic and saw a car approaching on his left at approximately 20 to 25 miles per hour.
“In our opinion he should have taken the precaution to have slowed or stopped until he was assured of the intentions of the vehicle.
“Ques. No. 9. When the automobile commenced to turn to the right, state in feet where its left side was with reference to the center line of 10th Street. Answer: Approximately 3 feet East of center line of 10th Street.
“Ques. No. 10. When the automobile commenced to turn to the right, how far West of the East curbline of 10th Street were the right wheels of the bus? Answer: 3 feet.”
Neither party made any motion to strike any of the answers. They were not attacked in any way. The defendant filed its motion for a new trial based on statutory grounds. This motion was never ruled upon. Defendant filed a motion for judgment on the answers to special questions notwithstanding the general verdict. This motion was sustained and a judgment entered in favor of the defendant.
The plaintiff has appealed and his specifications of error are that the court erred in sustaining the motion of the defendant for judgment on the special findings of the jury and in entering judgment in favor of the defendant and against the plaintiff on the special findings of the jury.
The brief of appellant states the question involved to be, should the defendant’s motion for judgment on the special findings of the jury have been overruled?
As we have already noted, the defendant denied negligence and pleaded contributory negligence. At the trial, however, the defense of contributory negligence was not pressed. There was no dispute but that defendant boarded the bus; that the bus stopped suddenly while he was paying his fare and he was thrown against the rear vision mirror and injured. The defendant contended that the bus operator was compelled to stop suddenly in order to avoid collision with a car that passed it on the left and suddenly turned to the right in its path. The plaintiff concedes this but contends that the bus operator negligently started up when he knew, or should have known, that the car would turn in front of it.
In our consideration of the special questions we find the bus starting up after having stopped at the intersection and proceeding substantially north. There is no dispute but that this was a four-lane street and the bus was on the outside, or east lane. Questions 2, 3 and 4 find that as the bus approached the south curb line of Minnesota Avenue a north-bound automobile turned from the left in front of the bus so closely as to create danger of a collision and the bus was in danger of colliding with it when the operator put on the brakes and brought it to a stop to prevent this collision.
The plaintiff being a passenger for hire on defendant’s bus, the driver was held to the highest degree of care for his safety and is liable for the slightest negligence. (See 10 Am. Jur. § 1245, p. 163.) Following this rule, we said in Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686:
“It is the duty of a carrier of passengers for hire, including a street-railway company, to use the greatest skill, care and foresight practicable for the safety of its passengers in the preparation and management of the means of conveyance furnished for that purpose.”
The plaintiff invokes a rule that where the situation of peril arose because of the bus driver’s negligence, the emergency rule cannot be invoked in his behalf.
In answer to questions 6, 7, 8, 9 and 10 the jury found that when the driver of the bus started up from the loading zone he should have anticipated that the driver of the automobile to the left of the bus would make a right-hand turn in front of it, so as to require the operator to bring it to a sudden stop and that the operator of the bus should have observed the approaching car before moving the bus instead of moving the bus two feet and then observing the car at the rear of the bus and at any event being twenty-five feet back from the south curb line he should have been on the alert to a possible right-hand turn by the approaching vehicle.
The eighth question asked the jury to state the acts of negligence of which the jury found the defendant guilty. The jury answered:
“Ques. 8. If you find a verdict in favor of the plaintiff, state each and every act of negligence of which you find the defendant guilty. Answer: Bus driver, Mr. Lake, failed to observe traffic before starting bus, after starting bus he observed traffic and saw a car approaching on his left at approximately 20 to 25 miles per hour.
“In our opinion he should have taken the precaution to have slowed or stopped until he was assured of the intentions of the vehicle.”
Plaintiff contends the above answers convict the defendant of negligent conduct, which placed the bus in a position where it became necessary to stop the bus suddenly.
In a case factually similar to the instant case, our Tenth Circuit Court of Appeals in Wichita Transp. Corporation v. Braly, 150 Fed. 2d 315, adhered to the same general rule of law.
There is no question in the instant case but that there was a ;udden stop by appellee’s bus and that appellant was injured by reason thereof and that the bus operator made such a sudden stop in order to prevent a collision with a vehicle which had made a right-hand turn ahead of him. In answer to special question No. 5— Do you find that plaintiff’s (appellant) injury was the result of an unavoidable accident? the jury answered “No.” While the bus driver made the sudden stop to avoid a collision, the answer to question No. 5 returned by the jury finds in effect that' the bus driver was guilty of negligence in placing himself in such a position as to require him to make an immediate, sudden stop. He had moved the bus from a stationary position 25 feet from the intersection prior to making his sudden stop. The question was in the jury’s mind as to what the bus driver did with reference to observing traffic and what vigilance he used while he was traveling that twenty-five feet. This court cannot say as a matter of law that a bus driver in the exercise of the highest degree of care and vigilance was not bound to look, observe or anticipate that someone might make a right-hand turn ahead of him. There is a reasonable inference that the automobile which approached and entered the intersection to the left of the bus driver came into view of the bus driver at some time prior to making the turn ahead of him.
In the case of Wichita Transp. Corporation v. Braly, supra, the court said at page 317:
“The appellant (transportation company), sought to be relieved of liability for the injury by showing that the bus moved into the intersection travelling approximately three miles per hour in low gear, and that when the driver of the automobile, while moving directly in front of die bus suddenly stopped to avoid hitting a pedestrian, the bus drivei exercised proper care in bringing his bus to- as smooth a stop as possible to keep from hitting the car.”
The court stated with reference to such contention:
“The bus driver, however, does not acquit himself of the presumption of negligence arising out of the unusual and sudden stop by showing that he exercised proper care in bringing the bus to as smooth- a stop as possible to keep from hitting the car. The-crucial question here is not what he did after he was faced with the emergency — it is how he happened to become, involved in it. . . . Having been faced with the necessity of stopping the bus in a manner to cause injuries to passengers, it became the duty of appellant to show to the satisfaction of a jury that it did not negligently create or contribute to the creation of the emergency which necessitated the ‘sharp, unusual and violent’ stop.” (Italics supplied.)
See, also, Safety Motor Transit Corporation v. Cunningham, 161 Va. 356, 171 S. E. 432.
The jury having found that such sudden stop could have been avoided said in the answer to special question No. 6 that the driver should have anticipated that the driver of the automobile on the left of him might make a right-hand turn in front of the bus, and in answer to question No. 7, that the bus driver should have observed approaching cars before moving the bus instead of moving the bus two feet and then observing the car to the rear. And they further stated in any event the bus driver came twenty-five feet from the south line of Minnesota Avenue and should have been on the alert to a possible right-hand turn by approaching vehicles and in their answer to question No. 8, that the bus driver failed to observe traffic before starting the bus and after starting the bus he observed and saw the car approaching on his left and that he should have taken precaution to have slowed or stopped his bus until he was sure of the intention of the vehicle. These answers returned by the jury settled questions of fact. They were not questions of law to be determined by the court. The jury found by the answers and by the general verdict that the bus company in carrying this appellant for hire failed to exercise that highest degree of care commensurate to the occasion and in view of such general verdict and findings we cannot say as a matter of law that there was no negligence shown or found on the part of appellee’s driver.
There is no inconsistency in the answers to special questions returned by the jury and the general verdict. We said in Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239:
“In considering the special findings, the court is not permitted to isolate certain findings and ignore others. All are to be considered together and if one interpretation leads to inconsistency and another leads to harmony with the general verdict, the latter is to be adopted.”
We held in Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 212 P. 2d 633, that special findings were to be liberally construed with a view of ascertaining their intended meaning and regardless of how unskillfully expressed, they were to be given the meaning intended by the jury. In the case of Mehl v. Carter, 171 Kan. 597, 237 P. 2d 280 we stated:
“For the purpose of obtaining a ruling on a motion for judgment non obstante veredicto it is conceded the findings are supported by evidence. Such a motion is not sustained by reason of some possible inconsistencies between the findings but only when the special findings are contrary to the general verdict and compel judgment in favor of the movant as a matter of law. (Syl. 12.)
“The question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury. (Syl. ¶ 3.)
“When minds might differ with respect to negligence of a person in failing to anticipate injury might result from his conduct and some independent intervening cause the question of his negligence must be submitted to the jury.” (Syl. f 4.)
In view of what has been said, the judgment of the lower court should be reversed.
As has been noted, due to the ruling of the trial court on the motion for judgment on the answers to special questions, the motion of defendant for a new trial was never passed on. The trial court, however, never did approve this verdict. Plaintiff asks us to reverse the trial court and to order the verdict of the jury reinstated and judgment entered for plaintiff accordingly. We cannot do that since the trial court never has approved this verdict. (See Torpey v. Kansas City Public Ser. Co., 149 Kan. 735, 89 P. 2d 899; also Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P. 2d 157.)
The judgment is reversed with directions to the trial court to consider whether the verdict should be approved and if after such consideration the court approves the verdict judgment should be rendered thereon for the plaintiff; otherwise the court should grant a new trial.
Price, J., concurs in the result.
Thiele, J., dissents. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover the balance alleged to be due under a transaction for the erection of certain grain storage facilities and to foreclose a mechanic’s and materialman’s lien. Judgment was for plaintiff, W. H. Glass, Jr., and the defendant, F. L. Wiesner, alone appeals.
The sufficiency of pleadings is not involved. They need be sketched only sufficiently to ascertain the issues on which the action was tried.
The petition discloses the plaintiff was engaged in the business of selling various steel materials and constructing steel buildings at Wakeeney. The petition alleged and set forth a highly fragmentary written agreement which was as follows:
“Agreement for Construction and Erection of Elevator and Grain Storage “(as per drawing)
“This agreement entered into this 3rd day of May, 1949, between Fred Wiesner, party of the first part, and W. H. Glass, Jr., party of the second part. Agree that the party of the first part will pay on the following basis for the following services rendered by party of the second part.
“Payment to be (%) (one third) $8400 down with the signing of this agreement and the bill of material. The second % (one-third) $8400 payment to be made on erection of head house super structure. Balance to be paid on completion of said agreement of fabricating and erection of the Quonset and superstructure contained in the complete elevator and grain storage facilities contained in the drawings.
“It is understood that party of the first part to be responsible for all concrete work and purchase and installation of all equipment in said structure with the assistance and any engineering help that the party of the second part can offer. Any changes will be made by the mutual agreement of both parties.
“In the event there is additional stran steel purchased for the building, as per drawing, over and above the purchase order agreement it will be sold to the party of the first part at the party of the 2nd. part’s cost F.O.B. Scott City, thereby foregoing and profit on additional stran steel.
“Bill of material $18,213
“Fabrication & Erection 6,443
“Sales tax 364.26
“Total $25,024.26
“Fred L. Wiesner. 1st party 5-4-49
“W. H. Glass, Jr. 2nd Party”
In addition to the amount claimed under the written contract plaintiff made claim for other materials furnished and labor performed pursuant to the alleged requests of the defendant Wiesner. The structures were erected on the right of way of the Union Pacific Railroad company on which it was alleged Wiesner or the defendant, F. & M. Enterprises, Inc., owned a lease.
These defendants filed an answer which admitted the execution of the written agreement but denied F. & M. Enterprises, Inc., was a party thereto and alleged that on the day the contract was executed plaintiff agreed to construct the storage facilities for the sum of $25,024.26, except for certain cement work to be done and performed by the defendant Wiesner. It was also alleged that prior to the date of contract plaintiff was furnished drawings and that plaintiff on the date of the contract orally informed Wiesner he could build and construct the facilities at that price and they would fully and properly store and hold 130,000 bushels of wheat and such representations and warranties were relied upon by defendant. The answer also alleged certain defects in the construction of the elevator and the quonset addition which resulted in a failure of both the elevator and quonset bins to hold the grain. It further alleged Wiesner was required to repair such defects and that plaintiff was also indebted to him for certain lumber and materials used which belonged to the defendant. It was admitted Wiesner would be indebted to the plaintiff in the sum of $2,966.07 except for the offsets to which he was entitled which exceeded his indebtedness to the plaintiff by the sum of $182.58 for which he asked judgment against the plaintiff.
The defendants also filed a cross petition in which they sought damages by reason of the alleged defective construction of the storage facilities.
In the reply plaintiff denied all new matter contained in the answer, specifically denied any drawings were furnished to him to be used in the construction work and alleged it was orally agreed between him and the defendant Wiesner at about the time the memorandum attached to plaintiff’s petition was executed that Wiesner would be solely responsible for the installation of equipment for the bracing of bins, for bracing the quonset, for doors, windows and any and all labor and material over and above the material and erection thereof as disclosed in the memorandum agreement. He also alleged there was no agreement concerning the bracing of the bins except as expressly directed by the defendant. He also denied he had used any lumber belonging to the defendant which had not been returned to him.
Plaintiff testified no drawings referred to in the memorandum agreement were attached thereto at the time it was executed or thereafter. No drawings were introduced in evidence. There appear to have been some pencil sketches which were discussed during the building operations but they were not in evidence. There was sharp conflict in the testimony generally and particularly with regard to the necessary bracing of both the elevator and the quonset addition. Plaintiff, in substance, also testified he remonstrated against the premature use of the building for the storage of the 1949 crop, without additional bracing of the storage facilities, and that he warned Wiesner against the excessive amount of grain he was storing and that he (plaintiff) refused to be responsible for the results but Wiesner insisted on such storage. Although plaintiffs testimony that he warned defendant against inadequacy of the structures to hold such a large amount of grain was corroborated the defendant denied such a conversation and contended he followed plaintiff’s advice that the buildings were adequate for the purpose. On such conflicting testimony the trial court made the following findings:
“On the issues tried in this case on March 8, 1951, the court finds generally in favor of the plaintiff and against the defendants.
“Without attempting to limit this general finding, the court specifically finds that the plaintiff made no warranties whatever concerning the structure erected by him; that the defendant, F. L. Wiesner, contracted for the steel building for a particular purpose, and selected the builder thereof, knowing that the plaintiff had not previously erected a structure of this kind; that the matter of bracing was discussed and agreed upon by both the plaintiff and the said defendant from time to time as the construction of the building progressed, and if the plaintiff made any statements to the effect that he thought the bracing was adequate or that he would accept responsibility therefor, they were mere expressions of opinion and were unsupported by any independent consideration. The contract between the parties merely called for the erection for a certain building from ‘stran-steel’ in accordance with certain drawings which are not in evidence. Nothing had been agreed upon relative to bracing at the time of the original contract made on or about May 3, 1949, but said defendant had expressly rejected the plan of bracing as now contended for in sub paragraphs 1 and 2 of his answer, by reason of the cost thereof. The defendant was faced with a time element because harvest was coming on and he needed storage space. On at least one occasion when discussing the manner of bracing, he directed where braces should be installed saying to the plaintiff that he would be responsible for what happened to the elevator and he was then warned by the plaintiff not to put any heavy wheat in that compartment, which warning he disregarded.
“The court further finds that the plaintiff fully performed his primary obligation for the erection of the building at a cost of $25,-020.26 of which the defendant paid $24,000.00 leaving a balance due of $2,020.26. There appears to be no dispute concerning the amount of this item.
“Additional labor and material was likewise used on the work, as itemized in two items of $929.73 and $799.55 in Exhibit C attached to plaintiff’s petition. Both of these items were paid in full.
“Other items as used in the construction are listed on pages 2 and 3 of said Exhibit C in the amounts of $1,212.89, $5,059.56, $3,945.78, and $2,664.00, totalling $12,882.23. Adding to this, $2,020.26 gives us a balance of $14,902.49, against which the defendant, Wiesner, is entitled to credit of $1,009.80 paid by check on August 19; $4,-750.00 paid by check on August 22; and $3,515.87 credit by labor on August 22; a total of $9,275.67. This leaves a balance of $5,626.82 due plaintiff as of September 10,1949.
“The court disallows plaintiff’s claim of $96.18, $4.45, $7.04, $18 and $243.30 as listed at the bottom of page 3 of said Exhibit C, for the reason that the evidence fails to show any liability of the defendant therefor.
“Judgment is rendered for the plaintiff against the defendant F. W. Wiesner, for $6,136.94 (which includes interest to this date) with interest thereon at the rate of six percent per annum from this 14th day of March, 1951, and for the foreclosure of the mechanic’s lien set out in plaintiff’s petition against all of the defendants. Order of sale to issue after 10 days, on praecipe, and costs taxed to the defendant, F. L. Wiesner.
“The court further finds that on Nov. 12,1949, defendant The Lee Hardware Company, a corporation, caused to be filed in the office of the Clerk of the District Court of Trego County, Kansas, a mechanic’s lien arising from the construction of the elevator and grain storage facilities involved in this case, upon which there is a balance due to said The Lee Hardware Company of $231.67 with interest thereon at six percent per annum from Nov. 12, 1949; the court further finds that the identical items claimed by said defendant are included in the hen filed herein by the plaintiff and that the defendant The Lee Hardware Company should recover from the plaintiff the sum so found to be due and owing to it, to be paid out of the judgment rendered herein in favor of the plaintiff and against the defendant F. L. Wiesner.”
There is no cross-appeal by plaintiff from the last finding and it, of course, must stand.
It is thus observed the trial court found generally in favor of the plaintiff and against the defendants. It also expressly resolved the important factual issues in favor of the plaintiff.
The defendant Wiesner relies on the doctrine of implied warranty and cites statements of law from various cases. He leans heavily on a statement contained in City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963, which reads:
“When the principal object of a contract is to obtain a result, there has been no compliance with the contract until the result has been obtained.
“ ‘Where the contract contains a guarantee or warranty, express or implied, that the builder’s work will be sufficient for a particular purpose, or to accomplish a certain result, unless waived by the owner, the risk of accomplishing such purpose or result is on the builder and there is no substantial performance until the work is sufficient for such purpose or accomplishes such result.’ (9 C.J. 745.)” (P.600.)
We adhere to that rule. The trouble here lies in its application to the instant facts. Clearly the memorandum agreement contains no express warranties. Moreover it nowhere attempts to imply what amount of grain the elevator and quonset addition were expected to accommodate. In view of the conflicting testimony the court had a right to believe the facilities were constructed in accordance with Wiesner’s directions and against plaintiff’s admonition that they were inadequate and that defendant agreed to assume the risk. Under such circumstances there is no room for the application of the doctrine of implied warranties against the builder.
Defendant further asserts the court erred in refusing to permit him to prove damages resulting from certain alleged defects. It appears the excluded 'testimony pertained to defects not alleged among those listed in defendants’ answer in response to a motion to allege specifically the defects complained of. Furthermore, since the court reached the conclusion, on the basis of issues joined by the petition and answer, that the defects, if any, resulted from Wiesner’s directions then manifestly Wiesner would be entitled to no damages alleged in the cross petition resulting from such construction.
This was primarily, if not entirely, a fact case. All the material facts were generally, if not specifically, resolved in favor of the plaintiff and against the defendants. There was no error in overruling the motion for a new trial.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to quiet title to an oil and gas lease, to determine the equities of the parties thereto, for costs and such other relief as to the court may seem just and equitable. A trial to the court resulted in judgment for defendants. Plaintiff has appealed.
In the petition, filed July 16, 1947, plaintiff’s address was given as Omaha, Nebraska, and that of defendants as Peru, Kansas. It alleged that on November 20, 1945, defendants, as lessors, entered into an oil and gas lease with plaintiff as lessee covering that part of a described eighty acres of land in Chautauqua County, Kansas “lying South of the North line of what was formerly the right of way of the A. T. & S. F. Railway Company.” (We pause to say this is a triangular tract containing about ten acres; the plat, used in the trial, shows the right of way entered upon the eighty-acre tract at the southeast corner thereof, extended to the north and west and left the west side of the eighty acres at a place where the south line of the right of way was 1,000 feet north of the southwest corner of the eighty-acre tract.) It was further alleged the lease was upon a “Producers 88B Federal” form, which among other things provided:
“That the lease was to remain in full force for a period of one year from the 20th day of November, 1945, and as long thereafter as oil or gas, or either of them, was produced from said land by the lessee.
“That if no well was commenced on said land on or before the 20th day of August, 1946, the lease was to terminate unless on or before the 20th day of August, 1946, the lessee paid to the lessor the sum of $10.00, which would operate to defer the commencement of a well for 12 months from said date.
“The lessor warranted and agreed to defend the title to the land decribed in said lease.”
It was further alleged that on November 20, 1945, plaintiff and defendant H. V. Joslin entered into an agreement whereby it was agreed it would be necessary to quiet title to the real estate before drilling a well thereon; that Joslin agreed the lessors would institute a quiet title action and prosecute it to conclusion, in consideration of which plaintiff was to pay the attorney’s fee and the court costs and should have six months from the date of the judgment in tire quiet title action to commence the drilling of a well on the property. It was further alleged that in accordance with the agreement just mentioned the lessors, on December 12, 1945, instituted an action in the district court of Chautauqua county to quiet title to the land described in the lease, and on January 18, 1947, a judgment was rendered by which the lessors acquired a clear title to that part of the leased premises lying north of the center line of the former right of way, but failed to clear their title to that part of real property described in the lease lying south of the center line of the right of way.
It was further alleged that immediately after the judgment in the quiet title action the defendants here drilled two oil wells upon that part of the land to which they were decreed to have a clear title, and in doing so they knew of their lease to plaintiff and that they were drilling at their own risk.
It was further alleged that since January 18, 1947, plaintiff drilled three wells on that part of the land described in the lease lying south of the center line of the right of way, to which it had been adjudged the lessors had no claim, and was ready and willing to drill on the part of the land adjudged to belong to defendants, but the possession was denied plaintiff by defendants.
It was further alleged plaintiff paid the cost deposit to commence the quiet title action and entered into an agreement with the attorney of plaintiff in that action to pay him a fee of $150 out of the oil runs from the premises; that he has not paid the balance of the costs nor the attorney fee, but “stands ready and willing to pay the balance of said court costs if and when he secures title to said oil and gas lease or when ordered to do so by the court.”
The oil and gas lease, and the agreement of the same date were attached as exhibits to the petition. The lease was signed by H. V. Joslin and Señora Joslin, his wife; was duly acknowledged by both of them and shown to have been filed for record February 14,1947, and duly recorded. The agreement between H. V. Joslin, first party, and T. E. Dailey, second party, was signed by them only. It was not acknowledged and is not alleged to have been recorded. This agreement, after stating that the first party, his wife joining, had entered into an oil and gas lease with the second party upon certain real property, describing it as in the lease, recited:
“Now it appears that it is necessary that the title to said real estate be quieted and perfected, before drilling a well on said real estate, and First Party agrees to institute Quieting Title proceeding on this, and other adjacent property, and prosecute the same to completion. The attorneys fees and costs of the case to be paid by Second Party.
“It is further agreed that Second Party will start a well on the leased tract within six months from the date of the Judgment of the Quieting Title, and if no well is commenced, he will cancel the lease.
“Second Party is given six months from date of Judgment in quieting title suit in which to accept said lease and begin operations for a well.”
This was signed by H. V. Joslin, as Party of the First Part, and T. E. Dailey, Party of the Second Part.
The defendants, H. V. Joslin and Señora W. Joslin, his wife, filed an answer to the petition in which they admitted the names and addresses of the parties; that on November 20, 1945, they executed the oil and gas lease which was on the form and contained the provisions set out in the petition and that they brought the action to quiet title, with the result all as stated in the petition. With respect to the agreement of November 20, 1945, it was alleged that agreement was between H. V. Joslin and T. E. Dailey only; that it was not signed by Señora W. Joslin, and that plaintiff has not performed his part of the contract in that he failed to pay the court costs and attorney’s fee therein. It was further alleged plaintiff was never paid or tendered the payment due by the terms of the lease on August 20, 1946; that plaintiff has failed, before August 20, 1946, or at any time since, to commence the drilling of a well upon the premises described in the lease, and by reason thereof the lease was no longer in force and effect.
Defendant further alleged that at various times they called the attention of plaintiff and of his authorized agents that such well had not been commenced, nor payment made as in the lease provided and required, and by reason thereof the lease was terminated, and requested plaintiff to release the same of record, and further advised plaintiff or his agents that the land should be developed, and since plaintiff had not developed the land defendants intended to do so, to which plaintiff made no objection. That thereafter defendants made arrangements for drilling two wells upon the real estate to which their title had been quieted, both of which wells were completed as producers; that it was necessary for them to drill on their property in order to save the oil therein, because wells were being drilled on the land directly north, west and south of their land; that plaintiff knew these defendants were drilling on their land, at great expense, and made no objections thereto and are now estopped from claiming any right, title or interest in the land or the oil produced therefrom. It was further alleged plaintiff knew the lease dated November 20, 1945, was no longer in force, had so stated to these defendants, and asked them to go to the office of a named attorney who would draw a new lease which would be binding, which defendants declined to do.
Defendants further alleged that the oil and gas lease theretofore made with the plaintiff has terminated and should be released of record. The prayer was that plaintiff take nothing by reason of the action and that defendants be discharged with their costs.
These defendants also filed a cross petition by which they sought an order to require plaintiff to release of record the lease of November 20, 1945, upon the grounds it was no longer in force and effect, including by reference the allegations of their answer and asking for the statutory penalty and attorney’s fees authorized by G. S. 1949, 55-202, and that their title be quieted as against plaintiff.
Plaintiff filed a reply which admitted that he did not commence a well on the premises before August 20, 1946, and that he had not paid or tendered the sum due on that date, but denied the lease is no longer in force and effect, denied that the agreement of November 20, 1945, was without consideration, and generally denied other allegations of the answer.
Answering the cross petition plaintiff admitted its allegation respecting the names and addresses of the parties, the execution of the lease and its terms, and denied generally other allegations of the cross petition.
The record discloses the First National Bank of Sedan was made a party defendant because Joslin had given it a mortgage on the property, but that the mortgage had been paid. The Sinclair Prairie Oil Company, a corporation, was made a party defendant because it had purchased the oil from the two wells drilled by Joslin. The court permitted it to hold the proceeds of the oil purchased in a suspense , account, to be paid as the court might direct.
When the case was called for trial the court was requested to make findings of fact and conclusions of law. The record relating to the title to the property, including the lease and agreement of November 20, 1945, and the files in the quiet title action, were received in evidence by stipulation. It was also stipulated that Joslin had expended $7,988.15 in drilling the two wells on his property and putting them on the pump and paying the pumper to October 1, 1949, and that the cost in the quiet title action in excess of the $15 deposited for costs and the attorney’s fee had not been paid. The respective parties testified and called the witnesses in their behalf. At the close of the trial the court took the case under advisement and asked counsel to present suggested findings of fact and conclusions of law. Later this was done, and on January 5,1950, the court filed its findings of fact and conclusions of law, which read:
“Findings of Fact
“1. That on the 20th day of November, 1945, the defendant, H. V. Joslin was the owner of record of the following described real estate, situated in the County of Chautauqua and State of Kansas, to-wit:
‘All that part of the east half of the northwest quarter of Section 22, Township 34, South, Range 12, East of the 6th P. M., lying south of the north line of what was formerly the right of way of the Atchison, Topeka & Santa Fe Railway Company, and north of the center of what was formerly the main track of the Atchison, Topeka & Santa Fe Railway Company,’
and in addition claimed the ownership of all of the rest of the East Half of the northwest quarter of Section 22, Township 34, South, Range 12, East, lying south of the center of what was formerly the tracks of the Atchison, Topeka & Santa Fe Railway Company.
“2. That on November 20th, 1945, the defendants, H. V. Joslin and Señora W. Joslin, his wife, made, executed and delivered to the plaintiff, T. E. Dailey, an oil and gas lease covering the following described real estate located in Chautauqua County, Kansas, to-wit:
‘All that part of the east half of the northwest quarter of Section 22, Township 34, South, Range 12, East of the 6th P. M. lying south of the north line of what was formerly the right of way of the Atchison, Topeka & Santa Re Railway Company;’
“That the terms of said lease provided that said lease was for a term of one year or as long as oil or gas or either of them was produced on said property; that if no well was commenced on said real estate on or before the 20th day of August, 1946, that said lease would terminate unless the lessee, T. E. Dailey, did, on or before that date pay to the Sedan State Bank of Sedan, Kansas, to the lessor’s credit, the sum of $10.00 which would act as a rental on said property and defer the commencement of a well for twelve months from that date.
“3. That on November 20th, 1945, but subsequent to the signing of the oil and gas lease by the defendant, the defendant, H. V. Joslin and the plaintiff, T. E. Dailey entered into an agreement by which it was agreed between T. E. Dailey and H. V. Joslin that it was necessary to quiet the title to the property upon which the oil and gas lease had been given, before a well was commenced on said premises. That the plaintiff, T. E. Dailey was to pay the attorney fee and the costs of the quiet title action and that the defendants were to commence the action and prosecute the same to completion. That it further agreed that the plaintiff should have six months from the date of the judgment of the quiet title action to commence a well upon said property and if no well was commenced within six months from the date of said judgment, that plaintiff would cancel the oil and gas lease.
“4. That the agreement was signed by H. V. Joslin but was not signed by Señora W. Joslin; that Señora W. Joslin knew of said agreement, became a party plaintiff to the quiet title action brought in accordance with said agreement, attended the trial in the action to quiet title to said property on several occasions and has accepted the benefits of the quiet title action.
“5. That H. V. Joslin and Señora W. Joslin in compliance with the terms of the agreement commenced an action to quiet the title to said real estate and that T. E. Dailey in compliance with said agreement paid C. W. Spencer, a cost deposit of $15.00 and entered into an agreement with C. W. Spencer with reference to the attorney fee. That the quiet title action was commenced on December 12th, 1945, and was entitled ‘H. V. Joslin and Señora W. Joslin, Plaintiffs, vs. George Oakes, et al, and was Case No. 6298, in the District Court of Chautauqua County, Kansas.’
“6. That the judgment of the District Court in said quiet title action was rendered on the 18th day of January, 1947, and that the defendants herein, H. V. Joslin and Señora W. Joslin were adjudged to be the owners of the following described real estate, to-wit:
’All that part of the east half of the northwest quarter of Section 22, Township 34, South, Range 12, East lying south of the north line of what was formerly the right of way of the Atchison, Topeka & Santa Fe Railway Company and North of the center of what was formerly the main track of the Atchison, Topeka & Santa Fe Railway Company.’
and that this was only a portion of the property included in the quiet title action and in the oil and gas lease to the plaintiff.
“7. That on January 23rd, 1947, the defendant, H. V. Joslin entered into a contract with Claude Appleby to drill three wells on the tract of land to which the title of H. V. Joslin and Señora W. Joslin was quieted and that shortly after January 23rd, 1947, the first well was commenced and was completed on or about the 17th day of February, 1947; that the second well was completed on or about the 7th day of March, 1947; and that the contract as to the third well was cancelled by agreement between C. D. Appleby and H. V. Joslin.
“That said Drilling Contract between H. V. Joslin and Claude D. Appleby was without the consent or knowledge of the plaintiff, T. E. Dailey and that not until early in February did T. E. Dailey learn of the commencement of the first well, and immediately thereafter, and prior to February 8th, 1947, the defendant, H. V. Joslin was advised by the plaintiff, T. E. Dailey acting through his attorney, John M. Wall, that plaintiff considered the oil and gas lease given to him by the defendants, H. V. Joslin and Señora W. Joslin as a valid lease and that any further drilling upon said property would be done at the defendant’s risk. That in April 1947, demand was made by the plaintiff through his attorney, Robert Stuart for possession of said premises and that the defendants refused possession to the plaintiff.
“9. That there are two producing wells on said property and that the oil produced therefrom has been and is being sold to the Sinclair Oil & Gas Company, and that the Sinclair Oil & Gas Company has held in suspense all of the proceeds from the sale of the oil and now holds said funds in suspense pending the determination of this action; that as of September 1st, 1949, the Sinclair Oil & Gas Company held in its possession the sum of $16,313.57.
“10. That the plaintiff, T. E. Dailey did not make any payment of $10.00 as provided for in the original oil and gas lease, dated November 20th, 1945, and has not since that date tendered or made payment of this amount.
“11. That the plaintiff, T. E. Dailey has not paid all of the court costs and attorney fees in the action of H. V. Joslin and Señora W. Joslin, plaintiffs, vs. George Oakes, et al, defendants, No. 6298, but has stated in his petition that he stands ready and willing to pay the balance of the said court costs, if and when ordered to do so by the Court.
“12. That during the months of May, June and July, 1947, the plaintiff, T. E. Dailey drilled three wells on another lease adjoining the real estate in question on the south and that said wells were drilled prior to the expiration of six months after the date of the judgment in the quiet title in case No. 6398 (6298), became final.
“13. That the defendant, H. V. Joslin expended approximately $7988.15, on the two wells drilled on the property in question and that a fair and reasonable wage for a pumper for said well is $75.00 per month and that it has been necessary to have a pumper on said lease since March, 1947.
“14. That there was no cash consideration given for the oil and gas lease entered into on November 20th, 1945, between the lessors, H. V. Joslin and Señora W. Joslin, his wife, and the lessee, T. E. Dailey, and that there was no cash consideration given in consideration of the agreement entered into on November 20th, 1945, between the above parties for the extension of the drilling clause in said lease.
“15. That the agreement entered into between the lessor H. V. Joslin and the lessee T. E. Dailey, on November 20th, 1945, which was entered into subsequent to the time of executing the oil and gas lease extended the drilling clause in said lease only.
“16. That the plaintiff, T. E. Dailey never, at any time, made an attempt to enter on to the premises under controversy herein for the purpose of drilling and (an) oil and gas well.
“17. That no oil or gas was, or at any time has been produced from the premises described herein by the lessee, T. E. Dailey.
“Conclusions of Law
“1. That the agreement of November 20, 1945, extending the drilling clause in said lease did not extend the fixed time provided for in said lease.
“2. That the lease expired by its own terms on November 20, 1946, and was void from and after that date.
“3. That the title to the real property described herein be quieted as against the plaintiff, T. E. Dailey, and said lease be and the same is hereby released of record.
“4. That the defendants have and recover from the plaintiff the sum of $100.00 statutory damages.
“5. That tlie defendants have and recover from the plaintiff reasonable attorney fees in the sum of $500.00.
“6. That the plaintiff pay the court costs and attorney fees involved in the case of Joslin, et al., v. Oakes, et al., No. 6298 in the District Court of Chautauqua County, Kansas.”
The court rendered judgment in harmony with its findings and conclusions. Plaintiff filed a motion for a new trial, also a motion for judgment in its favor on the court’s findings of fact. After a hearing both motions were denied and plamtiff appealed.
In this court appellant presents the following questions for our consideration: First, was the court correct in its conclusion that the agreement of November 20, 1945, signed by the defendant, H. V. Joslin, and the plaintiff, extended the drilling clause of the lease but did not extend the fixed term provided for in the lease, and that the lease expired November 20, 1946; and second, the disposition of the case in the event the court finds the court erred in its conclusions?
The principal question before us is the interpretation of the agreement and the construction to be given to it and the lease when both are construed together. Since the lease and the agreement were executed on the same day and both related to the same general subject, namely, the production by Dailey of oil from Joslin’s land described in the lease, they must be construed together. (See, Towel v. Fluharty, 110 Kan. 260, 203 Pac. 703; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594, and Spikes v. Weller, 159 Kan. 597, 156 P. 2d 540.)
Upon the points first presented for our determination counsel for appellant cite Towel v. Fluharty, supra; Hill v. Goering, 132 Kan. 189, 294 Pac. 679; Spikes v. Weller, supra, and Franklin v. Empire Gas and Fuel Co., 138 Okla. 186, 280 Pac. 839. While these cases contain matters persuasive in appellant’s behalf none of them has the specific question presented here. On this point counsel for appellees cite Perkins v. Sanders, 109 Kan. 372, 198 Pac. 954. The detailed facts giving rise to that decision are not set out in the opinion. When the case reached this court it presented but two questions: First, did the lease by its own terms expire on the 20th day of October, 1920, unless oil and gas in paying quantities had been found upon the land? That was answered in the affirmative by a clause in the lease. The second question was: If the lease did expire were lessors estopped to secure a declaration of its termination and to evict lessee? That was answered in the negative by the conclusion of the trial court predicated upon conflicting testimony. Hence, the case is not very helpful here. When the trial court sent its findings of fact and conclusions of law to counsel in a letter it advised that the court’s decision was based upon the following authorities:
Vol. 2, Summers Oil and Gas, Page 162, Sec. 303;
Mills & Willingham, Page 138, Sec. 88;
24 Amer. Jur. 564, Sec. 60;
Perkins v. Sanders, 109 Kan. 372, 198 Pac. 954.
We have already noted the Kansas case of Perkins v. Sanders, supra. The other authorities mentioned by the court are not referred to in any of the briefs filed with us. However, they have been examined. In general they point out the distinction between a drilling clause and the fixed term of the lease, usually incorporated in the habendum clause, and point out that the courts, particularly in the early history of oil and gas litigation and in the leases then written, were strict in holding that each must be considered separately in determining the rights of the parties. The general authorities, for sections or pages, continue pointing out different things which have been done to avoid hardships in the original leases and holdings, and in some instances clauses have been inserted in the lease by which the lease may be extended beyond the fixed time stated in the habendum clause. One of those was ruled upon in the case of Tate v. Stanolind Oil & Gas Company, No. 38,528, this day decided. Scores of other cases involving provisions of the lease, or provisions of the extension of the drilling clause or of the fixed term of the lease, are cited in the general authorities, and each of them finally uses a term tantamount to the one found in our case, Gas Co. v. Neosho County, 75 Kan. 335, 339, 89 Pac. 750, where it was said: “Each instrument must be interpreted in the light of its own peculiar provisions.” We have also examined many of the cases cited in West’s Digest under “Mines and Minerals,” Key No. 73M, and reached the same conclusion that has been reached by the general authorities. So, our task here is to examine these two instruments — the lease and the agreement of the same date — construe them together and determine the real contract between the parties with respect to the questions presented.
Preliminary thereto we take note of the fact pointed out by appellees, that there was no cash consideration for the lease, that the one dollar mentioned therein was not paid, and the suggestion there was no consideration for the lease. We think the mutual covenants of the parties constituted sufficient consideration. Counsel for appellees stress the fact that the agreement was signed only by the defendant, H. V. Joslin, and was not signed by his wife, Señora W. Joslin. In view of the court’s finding of fact No. 4, to which no objection was made, we think it clear that question is of no importance. Perhaps it was of no importance in any event, for such title as the Joslins had stood in his name, and since the land described in the lease is not claimed as a homestead or to be otherwise exempt there is no reason why he alone could not make a binding contract either to sell it, or to execute an oil and gas lease thereon, or to modify one which he had executed.
We now take up the consideration of the lease and agreement in their turn and the situation of the parties at the time they were executed. H. V. Joslin was a farmer who resided in the vicinity of the land in question and who had become interested in the oil business. It was stipulated at the trial that under date of August 25, 1945, the Ludowici Celadon Company, by a special warranty deed conveyed to H. V. Joslin the property described in the lease, subject to the rights of other parties not important here. T. E. Dailey lived in Omaha, but for several years had been interested in the oil business in Chautauqua county. At some time, not shown, they got together and talked about the leasing of this property, and on November 20, 1945, they went to the office of Senator C. W. Spencer, an attorney at law of Sedan, and a man of high character. The parties discussed the matter, as a result of which Joslin and his wife executed to Dailey the oil and gas lease in controversy. It provided:
“. . . this lease shall remain in force for a term of One years from date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”
It contained several provisions which might vary that one-year term. For example, it provided that if no well was commenced on the land by August 20, 1946, the lease should terminate unless the lessee should pay or tender the lessors, or deposit in a named bank to their credit, the sum of $10, the payment of which “sum shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date.” It also provided that if the first well drilled was a dry hole, “if a second well is not commenced on said land within twelve months” from the time covered by the last rental payment the lease should terminate unless rental payments were resumed. It contained a clause pertaining to the situation which would exist if a well was commenced within the term of the lease, “or any extension thereof,” with respect to the rights of the parties. These provisions are pointed out only to show that the lease is not one of the old form referred to in the general authorities which stopped everything at the date fixed for the termination of the lease. What is more important is that Joslin knew that his title to the land was not good enough to justify the drilling of a well until his title in the land should be quieted. This is clearly evidenced by the statement in the agreement:
“Now it appears that it is necessary that the title to said real estate be quieted and perfected, before drilling a well on said real estate.”
In that situation Senator Spencer drew for the parties the agreement, executed the same day, and in this instrument it was provided:
“First Party (Joslin) agrees to institute Quieting Title proceeding on this, and other adjacent property, and prosecute tire same to completion. The attorneys fees and costs of the case to be paid by Second Party (Dailey).”
Such a suit was brought and completed. The agreement continues:
“It is further agreed that Second Party (Dailey) will start a well on the leased tract within six months from the date of the Judgment of the Quieting Title, and if no well is commenced, he will cancel the lease.”
Now we cannot assume that these people intended to limit the time when a judgment would be rendered to quiet title so as to be as much as six months before November 20, 1946, one year after the date of the lease. In their agreement they placed the limitation upon the date of the judgment quieting title. Frequently a quiet title action may be completed in three or four months, but where it is contested, as the quiet title action was which was brought under this agreement, the time when the final judgment would be entered might be much later than the year from the date of the lease. Indeed, the quiet title action might have been appealed and several months consumed with that. In this situation the parties did the only reasonable thing fair-minded men could do, namely, fixed a time for the beginning of a well from the date of the judgment in the quiet title action without regard to the drilling clause or the time the lease was to run, as stated in the lease. Under the trial court’s holding the lease had expired and become void two months before the judgment was rendered in the quiet title action. Is that what the parties intended? Certainly not. They were not trying to destroy the lease; they were trying to get Joslin’s title to the land described therein determined so Dailey could operate un der the lease. The result is that the judgment of the trial court setting aside the lease and allowing statutory damages and attorneys’ fees must be set aside.
Under the second question presented for our determination, namely, the disposition of the case in the event this court finds that the lower court erred in setting aside the lease, appellant argues that the defendant Joslin is not entitled to be reimbursed for his expenses in drilling the two wells and for their operation. We think this point is not well taken. Early in February, 1947, perhaps a few days prior to February 8, the plaintiff learned that Joslin was starting to drill or drilling on this land under the claim that the lease itself had expired. He could have brought this suit promptly instead of waiting until two days before six months after the decree in the action quieting title. We think Joslin is entitled to reimbursement for those expenses in the amount found by the court.
The result is that the judgment of the trial court setting aside the lease should be reversed and the court should be directed to enter a decree that the lease executed by the parties on November 20, 1945, is a valid, existing oil and gas lease. The case should be otherwise disposed of as follows: Of the money for the purchase price of the oil from the two wells drilled by Joslin held in a suspense account by the Sinclair Prairie Oil Company, a corporation, there should be paid, first, to defendant, H. V. Joslin, one-eighth thereof, being the one-eighth royalty provided in the lease. Second, there should be paid to H. V. Joslin the sum of $7,988.15 stipulated by the parties and found by the court to have been expended by Joslin on the two wells drilled on the property in controversy and the cost of pumping the. wells to October 1, 1949, plus necessary and reasonable expenses incurred by Joslin since that date in operating such wells. If necessary, the court may hear evidence as to such additional expenses. Third, the clerk of the district court of Chautauqua county should be paid the costs in excess of the $15 deposit in the quiet title case entitled “Joslin v. Oakes, No. 6298,” in that court. Fourth, since C. W. Spencer, the attorney for the plaintiff in the quiet title action, had died prior to the time of the trial of this action the $150 attorney’s fee, which the court found the plaintiff had agreed to pay, should be paid to his widow, Mrs. C. W. Spencer. The remainder of the money in the suspense account should be paid to the plaintiff, T. E. Dailey, and he should be put in possession of the leased property decreed to belong to Joslin.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from the order entered by the district court approving and sustaining an order of the Workmen’s Compensation Commissioner denying compensation to appellant Mary H. Forcade, widow of Everett P. Forcade, deceased, and guardian of the minor children of Everett P. Forcade, deceased.
The facts giving rise to this case are as follows. Everett P. Forcade, an employee of defendant construction company, was injured in an accident arising out of and in the course of his employment on November 14, 1941, and serious injury to his heart resulted therefrom. His weekly salary at the time of the accident was $70, and his dependents were a wife and infant son. A second child was born about two months after the accident. At the time of his death on September 27, 1948, Forcade’s dependents were his wife and four minor children, all wholly dependent on him.
Upon proper notice of the injury, compensation under the Workmen’s Compensation Laws of Kansas was paid to Everett Forcade for twenty-nine weeks at the rate of $18, a total of $522, and medical expenses in the amount of $297 were paid. Payment of compensation ceased on June 21, 1942, and on June 26, 1942, defendant employer put Forcade to work in a sedentary position, where he was employed until the date of his death September 27, 1948, as a result of injuries received in the accident. On September 30, 1949, appellant wife filed a claim for compensation by notifying appellee construction company of her claim. On May 12, 1950, appellant as the widow and as guardian of her four minor children filed her claim for compensation and request for hearing before the Workmen’s Compensation Commissioner.
The parties stipulated as to the facts and agreed that they were governed by the Workmen’s Compensation Laws of Kansas; that the accident in which the deceased was injured arose out of and in the course of his employment and that death subsequently resulted from injuries received in the accident; that the claim of dependent minors was made within the time and in the manner provided by the Workmen’s Compensation Act; that the claim of Mary H. Forcade, widow, was made in thé manner provided in the Act; (there was no admission that it was made within the time provided in the Act).
It was further stipulated that compensation was denied by appellees as to Mary H. Forcade, widow, on the ground that death of the injured workman did not occur within three years from the date of the accident and that her claim for compensation was not filed within eight months from the date of the employee’s death and that compensation was denied by appellees as to the minor children on the ground that their father’s death did not occur within three years from the date of the accident.
Hearing was duly had before the Workmen s Compensation Commissioner who, on December 22, 1950, denied awards to all claimants on the principal ground that the workman Everett P. Forcade did not die as a result of the injury within three years from the date of the accident, and that the widow’s claim was not filed within eight months after the date of death. On appeal to the district court, the Commissioner’s action was approved and sustained. Appellant brings the case here charging error by the trial court in so holding.
The primary question involved in this appeal is: Where a workman dies of his injury more than three years after the accident in which the injury occurred, are his dependents entitled to benefits under the Workmen’s Compensation Act?
We will start with the assumption that the Act is founded broadly upon considerations of public policy. Its purpose is to provide protection to workmen within the limits established by the Act. To this end this court is committed in many decisions unnecessary to review to a liberal interpretation of the Act in favor of the employee. (Matlock v. Hollis, 153 Kan. 227, 109 P. 2d 119).
The provisions of the Workmen’s Compensation Act pertinent to this case are:
G. S. 1949, 44-501: “The obligation. 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, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with the provisions of this act. Save as herein provided no such employer shall be hable for any injury for which compensation is recoverable under this act.
44-510 (2) provides for the amount of compensation to be allowed on a claim where death results from the injury.
44-535: “When the right to compensation accrues. The right to compensation shall be deemed in every case, including cases where death results from the injury, to have accrued to the injured workman or his dependents or legal representatives at the time of the accident, and the time limit in which to commence proceedings for compensation therefor shall run as against him, his legal representatives and dependents from the date of the accident.”
44-520a provides in part: “Claim for compensation; time limitation. (1) No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, or in cases where compensation payments have been suspended within one hundred twenty days after the date of the last payment of compensation; or within eight months after the death of the injured employee if death results from the injury within three years after the date of the accident. . . .” (Italics supplied.)
It is well settled in this state that the Workmen’s Compensation Act is complete in itself and there can be no resort to the Code of Civil Procedure to supplement its provisions. In the case of Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, we said:
“In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. Another feature is that when both parties unite in this plan to adjust compensation it tends to prevent friction and hostility between employers and employees that frequently arise in actions based on negligence of tire parties. The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute. . .
See also Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980; Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; Ketchell v. Wilson & Co., 140 Kan. 163, 32 P. 2d 865; Cruse v. Chicago R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471.
It will be noted that prior to the enactment in 1927 of section 44-520a, no time limit appears in the act for the commencement of a proceeding to recover compensation where death of the employee results from the injury. In the 1927 amendment, we find for the first time the added limitation “if death results from the injury within three (3) years after the date of the accident.”
The provision of the new act as quoted refers to the three years within which death must occur before any liability accrues under the Act. With this interpretation the legislative intent appears that death from an accidental injury must ensue within three years from the date of the injury (G. S. 1949, 44-535), and if death does occur within such time, the claim for compensation for such death must be filed within eight months thereafter.
This 1927 amendment (sec. 44-520a) was obviously for the purpose of setting a specific time beyond which an employer would not be liable for death resulting from an accident arising out of and in the course of employment. It required that the death occur within three years from the date of the accident. It also protected the right of the dependents by providing they should have eight months after the death within which to apply for compensation. The law was thus made certain instead of being uncertain as it was before the amendment in that under the construction given the former statute, death might occur more than three years after the accidental injury and thus an employer complying with all the provisions of the Act would never have any certainty that a case was fully determined.
Counsel for both parties cite Cruse v. Chicago, R. I. & P. Rly Co., supra. In that case we held that where a claim for compensation was made within the required time as provided by law but the application for determination of compensation was made three years and two months after the injury, there was an unreasonable delay in instituting the special proceeding, and we refused to allow recovery on the ground the statute of limitations had expired. We said in that case:
“The fact that three years was held under the old law to be the proper limit, and the fact that three years is the limit now in Section 520a in case of death of the workman with reference to the six months written claim is sufficient to justify the conclusion that three years would afford a reasonable opportunity to commence this special proceeding and any time beyond such period would certainly appear to be unreasonable.” (Emphasis supplied.)
While this case throws little light on the questions involved in the instant case, it did recognize the three-year limitation under section 44-520a in case of the death of the injured workman.
Section 44-520a permits of no interpretation except that death as a result of injury must occur within three years after the date of the accident or no death benefits may be allowed. We are constrained to hold in this case where the date of the injury which resulted in the death of Everett P. Forcade was November 14, 1941, and the date of his death was September 27, 1948, more than three years after the accident, that this action is barred under the provisions of G. S. 1949, 44-520a and 44-535.
In view of what has been said, it is unnecessary to determine other questions raised by appellant. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
In this case defendant was convicted of grand larceny of cattle. He appeals.
After the verdict of guilty was returned defendant filed a motion for a new trial on some ten grounds. The only one raising this jury question is “That the court abused its discretion and thereby prevented the defendant from having a fair trial.”
The specifications of error are that the trial court erred in overruling defendant’s challenge for cause of prospective jurors, Belin and Cross.
Defendant divides its argument into three parts — Did the court err in overruling the challenge for cause of prospective juror Belin?; Did the trial court err in overruling the challenge for cause of prospective juror Cross?; and did such overruling constitute reversible error?
G. S. 1949, 62-1409 provides as follows:
“It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.”
Juror Belin on his voir dire examination first testified when examined by counsel for the state he had neither discussed the case with anyone nor read about it in the papers; that he knew defendant and his father. He further testified in answer to questions as to his lack of prejudice or preconceived opinions “Well, possibly not.” In answer to a question “Do you have any preconceived opinions of this man’s guilt or innocence right now?” “Well, just things that I have read in the papers a while back.” He said he recalled some of them. In answer to another question he said “Well, I think I could judge on the evidence.”
In answer to questions by counsel for the defendant he said he knew the family of defendant. In answer to an inquiry whether he had a preconceived opinion in the case he said “Well, I might have.”
The next question was “I see. Are there some opinions in your mind, Mr. Belin, that the defense will have to overcome in this case?” He testified “Yes, I think so.”
At this point counsel for the defendant challenged him for cause. Thereupon the trial court interrogated as follows:
“The Court: Mr. Belin, if chosen as a juror in this case, do you think you could lay aside everything that you have read or heard of the case and decide it solely upon the evidence as you hear it from the witness stand and the law as given you by the court? A. I think so.
“Q. And you would do that? A. I would try.”
The trial court then overruled the challenge.
Thereupon counsel for defendant interrogated him.
“Q. Mr. Belin, do you have any personal or business reason why you cannot serve on this jury and arrive at a fair and impartial verdict regardless of how long that might take? A. Well, it would depend on the weather. I live out on dirt roads and I can’t get out too well if it thawed out. It might be pretty hard for me to get there sometimes.
“Q. After hearing all of the evidence that will be presented here to the jurors and you have formed a conviction as to the innocence or guilt of the defendant would you be willing to stick to that conviction when you retire to the jury room, regardless of how long it may take? A. Yes, sir.
“Mr. Harris: Pass for cause, your honor.”
Juror Cross testified he had known the defendant for years. He further in answers to questions of counsel for the defendant testified, the men whose cattle defendant was charged with stealing were his cousins. At this point counsel for the defendant challenged him for cause. This was overruled.
Juror Mrs. Foerschler on her voir dire testified that she had read about the case in the newspapers but had not formed or expressed any opinion; that she was acquainted with defendant because she had worked for the county court and there was a case or two against him. On examination by counsel for defendant she testified these were liquor cases and she had a prejudice against drinking alcoholic beverages. In answer to further questions by counsel for defendant she testified as follows:
“Q. Are you a member of the WCTU? A. No.
“Q. Would tire fact that the defendant might have been charged in the county court for some liquor violation, would that influence your decision in this matter? A. Absolutely not.
“Q. You would try this cause strictly on the evidence that is presented here in this trial? A. That’s right.”
Defendant did not challenge Juror Foerschler for cause.
After a few more questions counsel for defendant stated: “Pass for cause, your honor.”
After some twelve persons had been passed for cause the state accepted the jury and made no peremptory challenges.
At no place in the argument on the motion for a new trial did the defendant contend that Juror Foerschler was objectionable to him. He made no such objection with respect to any juror who actually sat at the trial.
The defendant made six peremptory challenges. Amongst the jurors he challenged were Belin and Cross so that neither one of those sat on the jury.
After defendant’s six peremptory challenges defendant passed for cause the last juror examined and made no further objection to the jury.
We will first consider defendant’s argument as to juror Belin. Defendant concedes the question of whether a juror is disqualified because he has formed or expressed an opinion on the.issue must be decided on the facts in the particular case. It is an issue of fact the trial court must determine. (See G. S. 1949, 62-1410.) The trial court’s finding on such a question will not be disturbed unless it appears there has been an abuse of discretion. (See State v. Hooper, 140 Kan. 481, 37 P. 2d 52.) There we said:
“The determination of the question whether a prospective juror is qualified to sit in a case is a trial of that question to the court. (R. S. 62-1410). The trial court’s decision on that question will not be disturbed on appeal unless disqualification appears as a matter of law, or it is disclosed that there has been an abuse of the court’s discretion. (State v. Stewart, 85 Kan. 404, 116 Pac. 489.) ‘It is the mind of the court which must be satisfied that the challenged juror is free from bias and prejudice.’ (Morton v. The State, 1 Kan. 468, 472.) (See, also, State v. Molz, 91 Kan. 901, 139 Pac. 376; State v. Mullins, 95 Kan. 280, syl. ¶ 6, 147 Pac. 828; State v. Tucker, 137 Kan. 84, 91, 19 P. 2d 346.”
We have quoted at length from the record on the examination of juror Belin because defendant argues it shows him not to be qualified and argues the trial court did abuse its discretion in overruling his challenge for cause as to that juror. On the whole, in view of the fact that the trial court saw the juror and participated in the examination and considering his answer to the last question of counsel for the defendant as well as to those of the court, we cannot say the court did abuse its discretion. The burden of searching the mind of a juror to ascertain whether what is in the mind is actually an opinion, or is merely a fleeting impression, is difficult. Counsel for both parties, as well as the trial court, seem to have gone about the business of examining this juror with commendable thoroughness. The business of getting a qualified jury is a tedious one at the best. We will not hold a trial court has abused its discretion in such a case unless it clearly appears.
We have a different situation in prospective juror Cross. The owner from whom the defendant was charged with stealing the cattle was Lichtenhaus. Cross testified he was their second cousin. He was challenged for cause and the challenge was overruled. Just why it was overruled is a little difficult to see. The pertinent statutes are G. S. 1949, 62-1406. It provides:
“Where any indictment or information alleges an offense against the person or property of another, neither the injured party nor any person of kin to him shall be a competent juror on the trial of such indictment or information. . .
And G. S. 1949, 77-201, ¶ 28, which provides:
“When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, relationship within the degree of second cousin, inclusive, shall disqualify such person from acting, except by consent of parties.”
In State v. Hooper, supra, we dealt with this question and said:
“At common law kinship by consanguinity within the ninth degree, as computed by the civil law, disqualified a juror (Bailey vs. Turner, 108 Kan. 856, 860, 197 Pac. 214; 35 C. J. 317). Perhaps our statute (R. S. 77-201, ¶28) would limit that to second cousins.”
Juror Cross was clearly disqualified and the challenge to him for cause should have been sustained. Counsel for the state admit this ruling was error.
This brings us to the third question argued by defendant — Did the overruling of defendant’s challenges for cause constitute reversible error? Since we have concluded that the trial court did not err in overruling the challenge to juror Relin, the question resolves itself into — Did the trial court err in overruling the challenge to juror Cross?
Defendant argues that after having two challenges for cause erroneously overruled and having exhausted his six peremptory challenges he was compelled to leave on the jury Mrs. Foerschler who was objectionable to him and would have rejected had he not been forced to exercise two of his peremptory challenges to remove Relin and Cross. He says there can be no doubt as to the reason for her being objectionable.
The trouble with this argument is that defendant did not challenge Mrs. Foerschler. He did not really in the final analysis evince any objection to her as a juror. The state brought out the facts about her having known defendant. The defense brought this out a little more clearly by ascertaining the type of case that had been against him. The defendant then asked some questions tending to clear up any doubt as to whether she could try the case strictly on the evidence presented. After this he passed her for cause. As far as the record in this case discloses he had no objection to her as a juror. Should we hold she was objectionable it would be necessary for us to presume that counsel should have challenged her for cause. We cannot do that.
We considered this question in State v. Hooper, supra. In that case defendant had been charged with murder and convicted of manslaughter. There as here the defendant’s challenge for cause of seven jurors had been overruled. Only one of them, however, had been permitted to sit. One of the challenged jurors, Titus, was kin to the decedent. The question was there, as here, Was it error for the trial court to overrule the challenge to Titus and thus force the defendant to exercise a challenge on Titus which he otherwise would have exercised on Bamber? We said:
“Titus did not sit as a juror in the trial of the case. He and five other persons challenged for cause by the defendant, which challenges were overruled, were later challenged peremptorily by defendant. Of the twleve jurors who heard the evidence and reached the verdict only one, C. W. Bamber, was challenged for cause, and as to him we have held the court properly overruled the challenge. Our constitution (Bill of Rights, Section 10) guarantees to an accused a trial by an impartial jury. That is all the accused can constitutionally demand (16 R. C. L. 291). While our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court’s ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, should not require a reversal of judgment of conviction, if in fact, as here, the defendant had a trial before an impartial jury.”
This record is a little stronger for the argument of the state than is the Hooper case, since in that case Bamber was challenged for cause and the challenge was overruled, while in this case juror Foerschler was not challenged. See, also, State v. Tucker, 137 Kan. 84, 19 P. 2d 436, where we said:
“There is' another reason why this ruling does not constitute error in this case. The juror was excused peremptorily and did not sit as in the trial of the case. It is not contended that any juror who was permitted to be upon the jury in the trial of the case was in any way biased or otherwise disqualified. In other words, the record indicates that the defendant had a fair, impartial jury to try his case. If that be true errors with respect to persons examined as jurors but who did not serve as such become immaterial.”
Defendant argues the rule is as stated in 24 C. J. S. 889 as follows:
“It is also well settled in some jurisdictions that error in overruling a challenge for cause which necessitates the use of a peremptory challenge is reversible error, if accused exhausts his peremptory challenges in challenging other jurors before the completion of the panel, even though it was not shown that any juror objectionable to him was allowed to serve.”
We prefer the rule as stated in 24 C. J. S. 889 as follows:
“Some cases, however, hold that error in overruling a challenge for cause is not ground for reversal, although, by reason of the exhaustion of his peremptory challenges, accused is subsequently compelled to accept a juror legally competent but objectionable to him; other cases hold that even where accused is compelled to exhaust his peremptory challenges before completion of the jury by reason of error in overruling challenges for causes, he will not be entitled to a reversal unless it appears that by reason of the error one or more objectionable jurors were forced on him, as for instance, where it is shown that after the peremptory challenges were exhausted he had challenged for cause some of the jurors who were selected.”
We are rather persuaded by the reasoning and soundness of the authorities upon which the above rule is based.
The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is: Was the jury which tided defendant composed of impartial members? In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.
In this record counsel for the defendant after exhausting his six challenges and examining the last juror called made the solemn statement “Pass for cause, your honor.” Thereupon the jury was sworn to try the cause. At that point there was no one in the jury to whom defendant objected.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to set aside a deed as being void. The trial court sustained a demurrer to plaintiff’s evidence and he has appealed.
Clifford M. Handley is a twin brother of the plaintiff. He will be referred to as defendant. Henry C. Handley, Sr., intervened to protect his rights, which he alleged to be a life interest in the property. Since that is not seriously in dispute we need not mention it further.
In his petition, filed December 10, 1950, plaintiff alleged that prior to October 11, 1948, he was the owner of a described farm in Shawnee county, then of the approximate value of $9,000, which was mortgaged to the State Bank of Meriden upon which there was an unpaid balance of about $2,500; that on October 11, 1948, he was not indebted to defendants; that he was ill and was in a disturbed and confused condition, which fact was known to defendants; that a confidential relation existed between him and defendants and that he resided at the home of defendants part of the time; that on October 11, 1948, defendants induced him to •sign a general warranty deed to them for a stated consideration of one dollar and other valuable considerations upon the oral statements and representations made by defendants to plaintiff that if plaintiff would execute the deed and convey the property to them defendants would hold the property for the benefit of plaintiff and would protect the equity and interest of the plaintiff therein, and that defendants would reconvey the title of the property to plaintiff when plaintiff would request defendants to do so; that relying upon the oral statements and representations made by defendants plaintiff executed the deed, which defendants recorded October 18, 1948, in the office of the register of deeds of Shawnee county; that no consideration was paid by defendants, or any of them, for the deed and no revenue stamps were attached thereto; that about March 19, 1949, defendant signed a complaint, filed in the probate court of Shawnee county, charging plaintiff to be insane, which caused the plaintiff to be committed to the Topeka state hospital as a mental patient, where he was detained until June 10, 1949, when he was released; that on January 3, 1950, defendant caused another complaint to be filed in the probate court of Shawnee county charging that plaintiff was insane, as a result of which he was adjudged insane April 13, 1950, and committed to the state hospital, where he remained as a patient until June 10, 1950, at which time he was restored and released; that “plaintiff now has full legal rights, and no guardian is now appointed or acting for him”; that since June 10, 1950, he has made frequent oral demands upon defendants for a reconveyance to him of the title to the property, but that defendants have failed and refused to do so although they orally admitted that plaintiff has an interest therein, and that defendants orally informed plaintiff that they cannot be compelled to reconvey the title to him since more than one year has elapsed since the conveyance was made, all of which are contrary to the statement made by defendants at the time they obtained the deed; that the deed executed by plaintiff to defendants on October 11, 1948, was made without consideration, was obtained by misrepresentation and fraud of defendants, as aforesaid, at a time when this plaintiff was not in full possession of his mental faculties and the power to reason for his own protection, all of which was known to the defendants. It was further alleged that defendants have received and retained plaintiff’s share of the income from the farm and have refused to account to plaintiff therefor. The prayer was for judgment setting aside the deed as void and for an accounting.
To this petition defendants filed an answer in which they admitted some of the allegations of the petition, which need not be detailed specifically; denied others, which need not be detailed; alleged that prior to October 11, 1948, plaintiff was indebted to them for certain items; alleged that at all times since October 11, 1948, H. C. Handley, Sr., and wife had lived upon the real property in question; that defendants had received some income from the real estate for the years 1949 and 1950 and had paid a number of expenses in connection with the farming, had made necessary repairs and lasting improvements upon the premises, have paid the taxes on the real estate and made payments of interest and principal on the mortgage thereon, a detailed account of which was attached as a part of the answer; and further alleged:
“That at the time said deed was delivered to the defendants, the defendants did verbally agree that if plaintiff would within one year, from said date, pay to them the amount of money he was then owing to the defendants, and each of them, and such additional sums as they had paid out, for repairs, taxes, improvements, interest and principal payments on said mortgage indebtedness, they would within said time, re-convey said real estate to the plaintiff.”
It was further alleged that plaintiff never paid, or offered to pay, for any of those items and had never requested defendants to re-convey the property within the time mentioned; that a part of the land was rented, naming defendants; that the parents of the brothers are still residing upon the real property and have an interest in the real estate; that they are advanced in years and have very little earning capacity; that defendants are interested in protecting the rights, peace and comfort of the parents during their lifetime and have been contributing to their support, and that if the deed executed, acknowledged and delivered to defendants by plaintiff was canceled, as prayed for by plaintiff in his petition, the same would be unjust and not equitable to the defendants. The prayer was that the judgment prayed for by plaintiff should be denied and that defendants have judgment for costs. To this answer plaintiff filed a reply, which is a general denial of the allegations contained in the answer except those which specifically admit allegations of the petition, and deny the correctness of the accounting 'filed by defendants, and request that they be placed on strict proof thereof.
When the case came on for trial before the court on March 1, 1951, plaintiff offered in evidence a written agreement dated January 20, 1948, in which plaintiff agreed to convey to his father, the intervenor here, an estate for the life of his father and mother, or the survivor of them, to an undivided one-half interest in the real estate here involved, also the deed of a later date from plaintiff to the intervenor to carry out the provisions of this agreement. These instruments are not before us and the controversy raised by the pleadings between the intervenor and the plaintiff, as to whether this contract and deed were for a life estate to all of the property or only an undivided one-half of it, was not passed upon by the trial court and is not in issue here. There was also introduced in evidence the probate court files of the proceedings initiated March 19, 1949, and July 3, 1950, which resulted in plaintiff’s commitment to the Topeka state hospital. Defendant’s objections to those files were overruled upon the ground that they went more to the weight to be given to the proceedings than to their admissibility. Plaintiff called an experienced real estate broker who had examined the property and given it as his judgment that it was of the reasonable market value of $9,100 in October, 1948. Plaintiff offered the medical records of the Topeka state hospital covering the two periods plaintiff had been a patient in that institution. Defendant objected to their introduction and the objection was sustained.
Plaintiff called as a witness a competent physician, Dr. John Crary, who examined the plaintiff on September 25, 1948. On that date plaintiff was taken to the doctor’s office by defendant, who arranged for the appointment and who later paid for the treatment. The purpose was to have the doctor treat plaintiff to get him over a drinking spree of three or four weeks’ duration, during which time plaintiff had been carrying a revolver and exhibited suicidal and homicidal tendencies. From the doctor’s examinatiozr of plaintiff and his history, which he learned from plaintiff and defendant, the doctor concluded plaintiff was an alcoholic and advised defendant to keep him away from intoxicants. He thought plaintiff was incompetent to transact business. The doctor was of the opinion that there was something more the matter with plaintiff than being an alcoholic and advised that he thought plaintiff was a psychiatric problem, that he should have psychiatric treatments and advised that the best hospitalization for him was at the state hospital. The doctor did not find that he had any delusions or hallucinations. The doctor testified:
“My opinion when I saw him at that time in ’48 he had been drinking, I felt that underlying the difficulty was a condition known as schizophrenia which is a mental condition . . . accompanied by extreme nervousness, depression, difficulty in making decisions, sometimes very violent, violence of which can take its effect upon other people, upon himself. . . . Now that is my opinion at that time, whether that was proved out later during his hospitalization I think you probably could find from the Hospital records.”
At that time there appeared to be no hostility between plaintiff and defendant. Defendant treated plaintiff as a normal brother and was there to be of assistance to him, and plaintiff appeared to be depending upon defendant. From his examination of the plaintiff and from the history obtained at that time the doctor made a notation of his having been a vagabond. The doctor saw the plaintiff a few days later, and on several occasions within the next two weeks plaintiff dropped in to see the doctor and visit with him. The doctor was asked and answered the following question:
“Q. Doctor, there are lots of schizophrenics running around holding responsible positions in high places of responsibility, aren’t there?
“A. Yes, that’s right. . . . There are a lot of them in the State Hospital too.”
William Landis, called as a witness, testified that he operated a bakery; that plaintiff had worked for him in Topeka and before he moved to Burlington; that plaintiff worked for him through July and August, 1948; that sometime in July he borrowed $1,000 from plaintiff and gave plaintiff his I. O. U.; that plaintiff quit working for him about September 1 and soon thereafter was drinking heavily, and on one occasion told the witness that he had paid plaintiff the money he had borrowed, insisting that the payment had been made at a tavern where both of them were. The witness said it had not been paid. Plaintiff also told a story of running over a man and dragging him under his car, which proved to be inaccurate. The witness thought plaintiff incompetent at that time. The witness testified that on October 20, 1948, he paid plaintiff by check the $1,000 which he owed and that plaintiff tore up the I. O. U. He thought plaintiff competent when the payment was made. Three other witnesses who saw plaintiff early in September concluded from his appearance and what he said and did that he was incompetent to transact business.
Plaintiff in his own behalf testified that he was forty-one years old; was reared in Topeka and quit school in the seventh grade; worked as a baker for the Jordan Bakery several years; that he began farming with his father about 1938; that they farmed for a time ten miles north of Topeka and one year near Meriden; that he bought the farm in question about the first of August, 1946, paid 6,900 and some dollars for it, $4,300 in cash, and had a mortgage on the place with the Meriden State Bank of a little more than $2,500; that he and his parents went in possession of the farm on March 1, 1947; that he was having some trouble with his father, who sued him for a half interest in the farm, as a result of which they entered into the agreement of January 20, 1948, a copy of which was introduced in evidence at the beginning of the trial; that at the time of the trial his father was seventy-four and his mother seventy-five years of age; that on March 1, 1948, they had a sale of their farming equipment and livestock, as a result of which he received $1,400 in cash; that he went to California about April 1, 1948, and returned about five weeks later; that he worked for Mr. Landis in the bakery, at first in Topeka and then at Burlington, where Mr. Landis moved; that he did not remember signing the deed in question but recognized the signature as his; that he remembered in a hazy way that he and his brother, the defendant, were in the Meriden State Bank and talked with Karl Lehman about the deed; that he also talked with his father and mother about deeding the land to his brother. He was asked and answered the following questions:
“Q. Do you remember any conversations that you had about this farm at this time or around this time with your brother? A. Why yes, I was going to Deed it over to him and he said he’d Deed it back anytime I wanted it and I was supposed to pay him back the money he put out on it.
“Q. Do you remember when that conversation took place? A. Along in September or October, somewhere along there. . . .
“Q. As you recall the agreement now what was it? A. Well, anytime I wanted it back all I had to have done was paid him back the money he had spent on it and he’d deed it back to me.
“Q. That is what you remember about it? A. Yes.”
He testified that there was no cash consideration at the time the deed was executed; that $100 was due on the principal on the mortgage each time the interest was due.
“Q. Can you describe in any fashion at all your mental or physical condition at that time? A. Not much, I wasn’t sleeping very well, kind of thought I was all right myself.”
He testified he had been a patient in the Topeka state hospital from March, 1949, until the 10th of June and again from January, 1950 to the 10th of June, on which date he was released and restored.
The witness further testified that he and his brother were on friendly terms; that he consulted with his brother at various times; that the brother and his wife would come out to the farm about once a week and he came into town and visited with the brother and stayed all night at the brother s house; that they talked about the farm on many occasions. His attention was called to portions of his petition which alleged in substance that his agreement with his brother was that he would deed the farm to his brother, who “would hold the title to said property for the benefit of this plaintiff, and would protect the equity and interests of this plaintiff therein.” Plaintiff testified that was the way he understood it and that he expected his brother to keep up the payments on the mortgage and to pay the taxes. The plaintiff had gone to the bank of Meriden and learned that the payments on the mortgage had been kept up, and while he did not get the exact figures on how much had been paid he understood it was between $500 and $1,000. He also knew that defendant had made some improvements on the property by putting in electricity, repairing and painting buildings, etc., but he did not know the amount expended for those purposes. He further testified that sometime after he was restored and released from the state hospital on June 10, 1950, he spoke to defendant about reconveying the property, and defendant told him that the doctors at the hospital had advised against it, and at a later time told him that the year had passed.
It will be noted that the conditions for a reconveyance, as testified to by the witness, were substantially the same as had been alleged by defendant in his answer except on one point. Defendant’s answer had a one year limit of time for the repayment.
In plaintiff’s petition he did not offer to repay defendant anything for payments made by him on the mortgage, taxes, or any other item, to protect his interests; neither did he testify that he offered to pay, or was willing to pay, any of those items in order to have the reconveyance. The trial court sustained a demurrer to plaintiff’s evidence, and we think properly so.
Attached to defendant’s answer was an itemized statement of moneys paid out for taxes, for interest and principal upon the mortgage, and for permanent and lasting improvements on the farm of approximately $2,000 more than defendant had received from crops. This was a suit in equity. Had plaintiff asked that the court determine the amount defendant had paid out and offered to pay the same as a condition of reconveyance of the property he would have had some standing in court. But he did not do that. The action was to set aside the deed as being void, and he attempts to sustain that view in this court. To do so would not be in harmony with plaintiff’s testimony and would- be inequitable in the extreme.
In this court plaintiff cites Waller v. Julius, 68 Kan. 314, 74 Pac. 157, where it was held:
“A deed executed without consideration by a person who is in fact insane, although not judicially declared so, to a grantee who knows of his incapacity, is void, and may be set aside at the suit of one who is in possession of the property under a claim of ownership."
That case reached this court by appeal from an order sustaining a demurrer to plaintiff’s petition, which, briefly stated, alleged that the deed was without consideration and the grantor at the time of making it was of unsound mind and incapable of transacting any business whatsoever and did not know what she was doing, which facts were known to the grantee. Other facts were alleged as to plaintiff’s interest in the property and her right to maintain the action. By reversing the trial court this court simply held that plaintiff was entitled to a trial upon her petition. Possibly a similar holding would have been made if a demurrer had been filed to the petition in this case. However, that was not done. An answer was filed and plaintiff offered all his testimony, and his own testimony made it clear that he was not to have the property reconveyed to him until he paid the grantee what he had paid out.
Counsel for appellant also cite Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530, where among other things it was held:
“A deed executed by an insane person to one who has knowledge of the mental incapacity of the grantor and who gives no substantial consideration for the property is an absolute nullity. . . .”
That case is materially different from the one before us. In that case a well-to-do business man, in March, 1903, when it was conceded he was of sound and disposing mind, executed a will in which he devised certain real property to the hospital. In February, 1907, about two months before he 'died, the testator executed a deed to the same property. The hospital brought a suit to set aside the deed, alleging it was void because of the mental weakness of the grantor and the undue influence exerted upon him while in that condition. Issues were joined and a trial was had, in which the trial court made findings of fact (pp. 73 to 75) and set aside the deed. This judgment was sustained. In this case, while there was a general allegation of fraud, no facts were stated upon which to base such an allegation. The evidence made it clear that there was no fraud in the procuring of the deed. The brothers were friends. They talked frequently about this deed, not only between themselves but with their parents. It was executed under an oral contract which stated its purpose. Plaintiff’s only complaint is that defendant did not reconvey it to him, but under plaintiff’s own statement of the contract to reconvey plaintiff had not attempted to comply with it. Neither can it be said that this deed was executed without consideration. It is true the evidence indicated no cash passed at the time of the execution and delivery of the deed, but the grantee did assume a substantial obligation, which plaintiff’s testimony disclosed he performed. We have examined the other authorities cited by appellant and find none of them to be controlling.
In Ash v. Wulf, 127 Kan. 301, 273 Pac. 432, the rule is thus stated:
“An executed contract of a person of unsound mind who has not been adjudged insane nor placed under guardianship is voidable only, and not void.”
This harmonizes with the statement in American Jurisprudence in the article on Insane and Other Incompetent Persons, section 56, which reads:
“The weight of authority supports the view that the contracts and conveyances of an insane person, made prior to an adjudication of his insanity, are voidable to the extent that, subject to certain conditions, they may be dis-affirmed by him, but that they are not void, and they remain in full force and effect until disaffirmed.” (Citing many authorities.)
In 17 C. J. S. 484, the rule is thus stated:
“Under the general, although not universal, rule, contracts of mental incompetents are voidable but not absolutely void. In some jurisdictions the void or voidable character depends on the degree of the mental incapacity.” (Citing, among other cases, Ash v. Wulf, supra.)
And on the same page the contracts for an intoxicated person are similarly construed.
In Mills v. Shepherd, 159 Kan. 668, 157 P. 2d 533, it was held:
“The test of mental capacity to contract or to convey property is whether the person possesses sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which he is engaged.”
Compare a somewhat different wording in the citations on page 673 of the opinion.
In this case there is no controversy about the execution and delivery of the deed sought to be set aside. That is alleged in plaintiff’s petition and admitted in defendant’s answer. The oral agreement with respect to the execution of the deed was alleged, in part, in plaintiff’s petition, more fully testified to by plaintiff as a witness, and alleged in defendant’s answer with one slight variation. The thought Doctor Crary had when he examined plaintiff on September 25, 1948, that plaintiff was a psychiatric problem and should have psychiatric treatment at the state hospital, appears to have been well founded, but such treatment was not found to be necessary until about six months later. In the meantime Mr. Landis thought plaintiff competent to transact important business on October 20. The doctor’s tentative view that plaintiff’s difficulty was a condition known as schizophrenia, which would have to be proved later during his hospitalization, appears not to have been well founded, at least not in a serious degree, for after two short periods of treatment in the state hospital plaintiff was released as being “restored.” From any point we view this record we are forced to get back to plaintiff’s own testimony respecting his agreement with his brother to the effect that plaintiff would convey the property to defendant by a deed; that defendant would protect his interest in it and would convey it back to plaintiff when plaintiff paid defendant what he had paid out, and that he has not attempted to make such payment.
Appellant complains of the ruling of the court sustaining defendant’s objection to the introduction of the record of the Topeka state hospital. After the demurrer to the evidence was sustained by the court plaintiff filed a motion for a new trial. At the hearing of that motion the record of the Topeka state hospital covering the times in question was not produced, as required by G. S. 1949, 60-3004, hence the ruling is not before us for review.
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The opinion of the court was delivered by
Thiele, J.:
This was a criminal action. The state appeals from a ruling of the trial court sustaining the defendant’s motion for a new trial.
As the result of a trial, on February 28, 1951, the jury returned a verdict finding defendant guilty of a violation of G. S. 1949, 21-424. Upon proper application defendant was given time to and did file his motion for a new trial on grounds including erroneous admission of evidence and failure to fully instruct the jury, and later and on April 5, 1951, the trial court set aside and annulled the verdict of February 28, 1951, granted defendant a new trial and continued the action until the May term of the court. On May 5, 1951, the state made an oral application to the court to file a motion for a rehearing of the defendant’s motion for a new trial, and after hearing argument the trial court permitted the state to filé such a motion. At sometime not disclosed by the record the state filed its motion for a rehearing, which the trial court heard on June 15, 1951, at which time it again sustained defendant’s motion for a new trial, ordered that the verdict of February 28, 1951, be set aside and annulled; that defendant be granted'a new trial and that the action be continued until the October term. Under date of June 21,1951, the state appealed to this court from the ruling of the trial court made June 15, 1951. It is noted there was no appeal from any other ruling of the trial court of any other date. In its abstract the state includes as a specification of error that the trial court erred in granting the defendant a new trial, as well as in its rulings on the admission of evidence.
We first examine the record to determine whether the appeal is properly perfected and before us for consideration.
Under G. S. 1949, 62-1703, the state may appeal to this court from the district court upon a question reserved by it, and without discussion we are of the opinion that the question the state seeks to have reviewed was sufficiently reserved under our- holdings in State v. Simpson, 169 Kan. 527, 220 P. 2d 175, State v. Clark, 171 Kan. 734, 237 P. 2d 255, and cases cited. It is further provided by G. S. 1949, 62-1725, that if the state desires to appeal any case mentioned in the preceding section, the county attorney, within ten days after the ruling complained of, shall serve notice of appeal, file the same with the clerk of the district court, order a transcript of so much of the testimony as is needed to present the case on appeal, see that the journal entry of the ruling complained of is filed and cause copies of such notice of appeal, with proof of service, order for transcript and journal entry, to be filed with the clerk of the supreme court.
The order appealed from was made June 15, 1951, but the notice of appeal was not filed with the clerk of the supreme court until June 26, 1951. If any order for a transcript was filed in the district court (and a transcript was necessary in the instant case), no copy of it was certified to this court. Although the appeal might be subject to dismissal for the failure to comply with the statutory requirements as to time and content, we shall not rest our disposition on that ground alone.
It will be observed that the original order granting defendant a new trial was rendered on April 5, 1951, and that under the above statute, the state’s right to appeal from the ruling expired May 15, 1951, and as a matter of fact it never has appealed from that ruling. After the time for appeal had expired, the state asked the court for permission to file a motion for reconsideration, such permission was granted and the motion filed. That motion was not of right, but was an appeal to the trial court’s discretion.
Under G. S. 1949, 62-1414, it is provided that a verdict may be set aside and new trial granted for like causes and under like circumstances as in civil cases. In civil cases we have held repeatedly that the time for appeal from rulings on purely legal questions inherent in a judgment cannot be extended by the filing of a motion for a new trial. (See Cimarron Co-operative Equity Exchange v. Warner, 166 Kan. 190, 192, 200 P. 2d 283, and cases cited, as well as First National Bank v. Bryant, 168 Kan. 471, 475, 113 P. 2d 1002.) The state’s motion presented only questions of law. In effect we are asked to say that the state, after its time to appeal from a ruling granting k new trial had become a finality, may file a motion for reconsideration and thus avoid that finality, and upon an adverse ruling may appeal and present for our consideration a review of all that transpired previously in the trial. That may not be done. We are not here concerned with any question that might arise had the trial court reversed its ruling on the defendant’s motion for a new trial, and shall not discuss it.
The state’s appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action in which the plaintiff, as an associate member of a fraternal benefit society, i. e., The Knights of Columbus, a corporation, is seeking to have this court supervise, direct, and control disciplinary proceedings instituted against him by that organization for improper conduct under purported authority of its constitution and by-laws. The appeal is from a ruling of the trial court sustaining a demurrer to plaintiff’s amended petition.
The amended petition, hereinafter referred to as the petition, is lengthy and in such form its factual averments cannot be easily summarized. For that reason, and in order that there can be no doubt as to the issues presented for decision on appeal, or confusion with respect to their decision, we attach a copy of such pleading to this opinion as an appendix where its allegations will be available for ready reference.
The certified copy of the short journal entry of judgment on file in the office of the clerk of this court serves a threefold purpose in that it reflects the reasons given by the trial court for sustaining the demurrer to the petition, the ground on which such demurrer was sustained, and the nature of the judgment rendered at the time of that action. It reads:
“Now, on this 1st day of August, 1951, the defendant’s demurrer to the amended petition of the plaintiff comes before the Court for determination, and the Court having carefully considered the amended petition and the authorities cited by the parties, finds: That the demurrer should be sustained on the ground that the amended petition fails to state a cause of action. It is my judgment that the action is prematurely brought for the reason that the amended petition clearly discloses that the plaintiff has not exhausted his remedy under the constitution and by-laws of the association. It Is, Therefore, Ordered, Adjudged and Decreed: That the defendant’s demurrer to the amended petition of the plaintiff be, and the same is, hereby sustained.
“It Is Further Ordered, Adjudged and Decreed: That the sustaining of ’ this demurrer necessarily disposes of the motion of the planitiff for a temporary injunction and the same is hereby overruled.”
There can be no doubt that in ruling on the demurrer the trial court was laboring under no misapprehension as to what plaintiff was required to set forth in his petition in order to state a cause of action under our decisions. Whatever may be held elsewhere the rule in this jurisdiction has always been that courts will not interfere and take jurisdiction of cases involving the disciplining, expulsion, or suspension of members of fraternal and benevolent societies unless and until it appears such members have exhausted the remedies available to them within the Orders to which they belong. For our latest decision on the subject, to which we adhere, see Porth v. Local Union 201, 171 Kan. 177, 231 P. 2d 252. For others, wherein the same rule has been recognized, applied, and adhered to, see Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Moore v. National Council, 65 Kan. 453, 70 Pac. 352; Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 807; Flynn v. Brotherhood of Railroad Trainmen, 111 Kan. 415, 207 Pac. 829; Wichita Council v. Security Benefit Ass'n, 138 Kan. 841, 28 P. 2d 976; Radio Station KFH & Co., v. Musicians Ass’n, Local No. 297, 169 Kan. 596, 220 P. 2d 199; and other decisions therein cited.
With the rule established it becomes obvious the question remaining for decision is whether the trial court erred in concluding the petition failed to state a cause of action because such pleading clearly disclosed that plaintiff had not exhausted his remedies under the constitution and by-laws of the association.
Turning to the petition, and limited strictly to the question to which we have just referred, we note: (1) That paragraph 9 asserts charges have been preferred against plaintiff; (2) that paragraph 10 concedes he is entitled to a trial on those charges under existing rules and regulations of the Order; (3) that paragraph 11 states such charges have been placed for trial before the Roard of Directors; (4) that paragraph 13 asserts removal of the charges for trial to the Roard of Directors operates to deny plaintiff of his right of appeal and places in the hands of his accusers the right to hear those charges; (5) that paragraph 14 asserts plaintiff cannot obtain a fair trial within the Order because of divers reasons therein stated; (6) that paragraph 16 charges sections 189 to 192 inch of the by-laws of the Order are unconstitutional and void because, under such sections, plaintiff would be subjected to trial before his accusers who also prosecute, hear and adjudicate the case; (7) that paragraph 19 states the removal of the charges subsequently preferred for trial before plaintiff’s accusers deprive him of his property and personal rights without due process of law; (8) that paragraph 20 alleges removal of the charges for hearing by the Board of Directors deprive plaintiff of certain constitutional rights; and, last but not least, (9) that the prayer of the petition itself, wherein plaintiff puts his finger upon the relief he seeks, is that defendant be enjoined from proceeding with his trial. We note also that the petition contains no allegations to the effect plaintiff has either demanded or been denied a trial on the charges preferred against him.
When the foregoing allegations of the petition and others to which we have not specifically referred are carefully analyzed it becomes crystal clear that the charges made against plaintiff are still pending and undisposed of within the Order, that he is entitled to a hearing and trial on such charges under its constitution and by-laws and that he has not been denied, but is seeking to avoid, such a hearing and trial. In view of that situation and of what has been heretofore stated we have little difficulty in concluding it affirmatively appears from the face of the petition that plaintiff had not exhausted the rights and remedies available to him within the Order before resorting to the courts for relief. It follows the trial court properly concluded the petition did not state a cause of action and that its order in sustaining the demurrer to the petition must be upheld.
In view of the conclusion just announced it is unnecessary to discuss or determine questions raised by the parties touching matters over which this court will not assume jurisdiction until its aid is invoked in an action wherein it appears the plaintiff has exhausted the remedies afforded him by the constitution and by-laws of the Order of which he is a member.
The judgment is affirmed.
APPENDIX
Amended Petition
Plaintiff invokes the equity powers of the court to remedy wrong and give justice and for his cause of action against defendant states:
That plaintiff is a citizen of the United States and a resident of Topeka, Shawnee County, Kansas; that his correct address is 404 Van Ruren Street, Topeka, Kansas. That the defendant, Knights of Columbus, is a corporation chartered, organized and existing under and by virtue of the laws of the state of Connecticut, and its correct address is Drawer 1670, New Haven 7, Connecticut.
1. That defendant is a fraternal benefit society and has been admitted to do business as such in the state of Kansas pursuant to the provisions of the Kansas Insurance Code. The corporate purposes of defendant include the rendering of pecuniary aid to its members; rendering mutual aid and assistance to its sick, disabled and needy members; promoting social and intellectual intercourse among its members; promoting and conducting educational, charitable, religious, social welfare, war relief and welfare and public relief work. Said defendant is further authorized to hold, receive, lease and purchase real estate and personal property and to sell and dispose of the same. It is authorized to adopt a constitution, by-laws, rules and regulations for its government, the management of its affairs, the protection of its property and for the suspension, expulsion and punishment of its members, the election and appointment of its officers and agents, etc.
2. That section 6 of the act of incorporation of defendant reads that “said corporation shall make no laws, by-laws, rules or regulations inconsistent with the laws” of the state of incorporation, and section 95 of the Constitution and Laws of defendant provides that the Supreme Officers of defendant are authorized and empowered to amend and modify the charter, constitution and laws of the defendant from time to time so as to conform to and be consistent with the laws in reference to fraternal societies in force in any state, territory or country.
3. By section 1 of the Constitution of defendant a Board of Government is established known as the “Supreme Council of the Knights of Columbus,” and under section 3 the membership thereof includes the members of the Board of Directors. Section 5 of the Constitution of defendant provides that the Supreme Officers of defendant “shall be a Supreme Knight, a Deputy Supreme Knight, a Supreme Secretary, a Supreme Treasurer, a Supreme Advocate, a Supreme Chaplain, and a Supreme Physician.” Section 8 of said Constitution creates the Board of Directors of defendant. The Supreme Officers are members of said Board of Directors. Under section 8 of the Constitution and Laws of the defendant, the Supreme Advocate and Supreme Secretary are included in the membership of the Board of Directors, and under section 32 the Supreme Advocate shall be the legal adviser of the Supreme Council and the Board of Directors “in all matters pertaining to” the defendant corporation. Under section 9 of the Constitution all executive authority of the defendant shall be vested in the Board of Directors.
4. That the defendant has authority to establish throughout the states of the United States subordinate or local councils and subordinate State and District councils. District councils are made up of territory within a state and all composed of members of the defendant corporation. Said local and subordinate councils are governed and controlled in their activities by the charter, constitution and laws of the defendant, and the constitution and laws of the United States and of the state in which such local council is situated.
5. Membership in the defendant corporation is limited to practical Roman Catholics, and under section 104 to 116 inclusive of the Constitution and Laws of the defendant, the application for membership is presented to one of the local councils and. is granted or rejected by the local council and the initiation into membership and all steps and proceedings for beginfling membership in defendant are subject to the jurisdiction and authority of one of the local councils situated in the various states throughout the United States. That defendant has two classes of membership, associate and insurance members.
6. That there exists a local council of the defendant in Topeka, Shawnee County, Kansas, known as “Topeka Council No. 534, Knights of Columbus.” That plaintiff petitioned said Topeka Council for membership and on April 4, 1924, was accepted as an associate member, was duly initiated and was and is a member in good standing, with all dues and assessments paid, and having complied in every respect with the charter, 'constitution and laws of the defendant corporation throughout all of the period since his acceptance to membership and including the year 1951. That in August, 1943, plaintiff made application for transfer from associate to insurance membership and for One Thousand Dollars ($1,000.) of insurance as a member of said Council 534, Topeka, Kansas. That as a member of said Topeka Council No. 534, Knights of Columbus, plaintiff owns and possesses a vested interest in the property, real and personal, owned by said Topeka council, and in addition thereto owns and possesses all of the tangible and intangible rights and benefits flowing and accruing to a member of the defendant corporation by reason of its many and varied activities as indicated by its corporate charter, including the charitable, religious, social, educational and intellectual intercourse among the members of said defendant.
7. That during the months of September and October, 1950, plaintiff did, with a view of bringing about improved policies and management of the defendant, publish and caused to be published and mailed to Luke E. Hart, Supreme Advocate, and John E. Swift, Supreme Knight, certain letters and printed documents making just and proper criticisms of the administration and management of the business and affairs of the defendant and highly critical of the Board of Directors and Supreme Officers and of the addressee’s, the said Supreme Advocate and Supreme Knight. That because thereof and for the purpose of covering up the mismanagement and dereliction of the Board of Directors and the Supreme Officers of the defendant and to prevent full and free discussion and inquiry among the membership of the defendant, and acting arbitrarily and capriciously, the Supreme Board of Directors of the defendant did on or about January 12, 1951, vote that plaintiff be suspended from membership in the defendant corporation, and that the Supreme Advocate, the said Luke E. Hart, be directed to prefer charges against plaintiff.
8. That such action suspending plaintiff from membership in defendant was taken by the Supreme Board of Directors without first preparing charges and serving the same upon the plaintiff, and in the absence of the plaintiff and without a hearing being accorded to the plaintiff.
9. That on or about February 7, 1951, charges were preferred against the plaintiff by Luke E. Hart, the Supreme Advocate of the defendant, wherein it was alleged that the letters of criticism mailed by the plaintiff in May, October and September of 1950 constituted violation of subdivisions 6, 7, 9 and 19 of Section 162 of the laws of the defendant, which provide:
“Sec. 162. Any member of the Order who after trial, excepting where it is provided that no trial shall be had, shall be found guilty of the conduct specified in the subdivisions following shall be fined, suspended or expelled as set forth therein, to-wit:
“6. Willful insubordination, contempt or disobedience of the lawful orders of superior authority; fine, suspension or expulsion.
“7. Giving scandal, scandalous conduct or practice unbecoming a member of this Order; suspension or expulsion. '
“9. Speaking, writing, printing or publishing any matter or statement which shall be deemed to be detrimental to the harmony and good order of the Knights of Columbus, or tending to create discord and dissension among the members or create public scandal, or causing the same to be done; suspension or expulsion.
“19. Making unjust or false- statements, accusations, or personal vilifications of or against any officer of the Order in his official capacity; suspension or expulsion.”
There was no trial of plaintiff as required by section 162 above, and the suspension was thereby void.
10. That under section 60 of the Laws of defendant, district councils are made up from territory within a state council, and under the provisions of section 174 to 181 of the Laws of the defendant, charges such as those preferred against plaintiff, as above described, .are triable by a trial committee composed of three members of the District Council and the charges are prosecuted by the Advocate of the District or State Council, and the accused is entitled to counsel in his behalf from the membership of the defendant generally.
11. That under the provisions of section 189 of the Laws of defendant the Board of Directors or the Supreme Knight may order the removal of charges and all proceedings thereon against a member of a local council for hearing and trial before the said Supreme Board of Directors. And, in said connection, section 191 of the Laws of defendant, provides:
“Where the removal is to the Board of Directors or to the Supreme Knight, such further proceedings shall be had on the complaint as they may determine ...”
That on or about February 13, 1951, John E. Swift, Supreme Knight of the defendant, ordered the removal of the charges pending against this plaintiff and the removal of the trial and all further proceedings from the local Topeka council to the Supreme Board of Directors. That as a result, the charges have been removed from the local council where the plaintiff resides and is well known among the members of the defendant corporation, and said charges have been placed for trial before the Board of Directors, which said board voted to and did suspend plaintiff from membership without hearing and the members of which are plaintiff’s accusers. And the membership of said Board of Directors includes the Supreme Advocate, Luke E. Hart, who prepared the charges against the plaintiff and who has the responsibility under the Constitution and Laws of the defendant corporation to prosecute said charges; and which Board of Directors includes among its membership John E. Swift and others who were the personalities criticised by plaintiff and whose acts and conduct were the subject matter of the letters written by plaintiff which form the basis of the charges preferred against the plaintiff.
12. Plaintiff further alleges that section 192 of the Laws of defendant provides that an injured member shall have right of appeal, and the only provision contained in the Constitution and Laws of the defendant corporation for an appeal from the results of the trial of the charges pending against the plaintiff are contained in section 193, which provides:
“Sec. 193, An appeal shall be direct to the Board of Directors.
“2. By any member in a case involving his suspension, expulsion or removal from office.”
13. That the removal of the charges against the plaintiff for trial before the Board of Directors operates to deny to the plaintiff his right of an appeal, and places in the hands of his accusers, the said Board of Directors, the right to hear, adjudicate and determine the very charges which said Board of Directors preferred against plaintiff; and the trial of said charges by said Board of Directors denies plaintiff his right of appeal and operates to make final and conclusive the ruling and determination of said Board. That such action of the Board of Directors in taking over the charges against the plaintiff under all the circumstances of the case was unfair, arbitrary, malicious and unjust and for the sole and only purpose of silencing plaintiff and suppressing the illegal acts and mismanagement of the Supreme Officers of the defendant corporation in the management of the affairs and business of the defendant and was contrary to law and public interest and in derogation of the constitutional rights of plaintiff.
14. That plaintiff cannot obtain a fair trial within the defendant Order because:
(a) Trials before the Supreme Board of Directors are conducted in an arbitrary and dictatorial manner and with a design and purpose to delay and postpone until plaintiffs are barred by laches and limitations in the civil courts.
(b) The power and influence of defendant Order and of its present and past Supreme Officers with persons in high places in the Catholic Church and in government and politics is used by them to influence and intimidate counsel and witnesses who represent and appear for the accused member.
(c) Hearings before the Supreme Board are not open and public and witnesses are not allowed in the hearing room except when testifying.
(d) Members of the Order tendering services and evidence in behalf of an accused member have been suspended from the Order for so doing.
(e) The by-laws and rules of the Order have been carefully drawn and designed to give the Supreme Board dictatorial powers without regard to the rights of an accused.
(f) Plaintiff is denied counsel in hearings within the Order because limited by by-laws to members of the Order who are subject to arbitrary suspension from the order and other intimidations, and involving charge which carries penalty of fine of unlimited amount, and taking of plaintiff’s property.
15. That by-law of defendant 162 and particularly paragraphs 6, 7, 9 and 19 of said section is unconstitutional because denying the constitutional right of free speech and free press.
16. That the by-laws of defendant which provide the trial procedure within the Order, and particularly Sections 189 to 192 inclusive, are unconstitutional and void and deny due process of law to this plaintiff because under said sections plaintiff is sub jected to trial before his accusers who also prosecute, hear and adjudicate the case.
17. Plaintiff has exhausted all rights and remedies under the laws of defendant insofar as within plaintiff’s power.
18. That in publishing and mailing the letters and printed documents as described above, plaintiff acted within the legitimate exercise of the privilege of Freedom of Speech and of the Press guaranteed to him by the Constitution of the United States and specifically by the 14th and 1st amendments thereto; and as further guaranteed by section 11 of the Kansas Bill of Rights; and sections 5 and 6, Article First, of the Constitution of Connecticut, the state of domicile of defendant. The Connecticut Constitution reads:
“Sec. 5. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.
“Sec. 6. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” 6/25/51
19. Plaintiff alleges that sec. 165 By-laws of defendant is void and the Order suspending plaintiff without notice of the charges, and without charges having been preferred and without hearing is unreasonable, unconstitutional and void; and that the removal of the charges subsequently preferred for trial before plaintiff’s accusers, the Board of Directors which ordered plaintiff’s suspension, and which, under the Constitution and Laws of defendant, has the duty to prosecute and hear and adjudicate its own charges, operates to deny plaintiff a fair trial and subjects plaintiff to the possibility of a fine of unlimited amount, and to deprive plaintiff of property and personal rights and privileges without due process of law'and in violation of the 14th and 5th amendments of the Federal Constitution; Section 18 of the Kansas Bill of Rights; and Section 12, Article First, of the Connecticut Constitution. The Connecticut provision reads:
Sec. 12. All courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
20. Plaintiff further alleges that the removal of the charges for hearing by the Board of Directors denied plaintiff his right of appeal and denies due process of law in violation of the above constitutional provisions.
That plaintiff has no remedy under the Constitution and Laws of defendant and no adequate remedy at law, and is entitled to invoke the equity powers of the Court.
Wherefore, Plaintiff prays that a temporary injunction issue enjoining defendant from enforcing its order suspending plaintiff from membership in the defendant corporation and from proceeding with the trial of plaintiff, and that upon trial and final hearing that said injunction be made permanent; and that said permanent injunction contain a mandatory provision requiring defendant to restore plaintiff to membership and to all the rights thereof. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order sustaining a demurrer to an amended petition in an action for damages for breach of a contract to convey real estate.
The facts as alleged in the amended'petition are these:
On March 29, 1950, plaintiff and defendants entered into an oral contract wherein it was agreed that plaintiff would purchase and defendants would sell certain described lots in the city of Greens-burg for the sum of $1,500, and that upon payment of such consideration defendants would convey to the city a ten-foot strip off of certain other lots owned by them for use as an alleyway. On August 3, 1950, plaintiff and defendants entered into a written contract covering that portion of their prior oral agreement relating to the sale of the lots to plaintiff. Through mutual mistake of the parties this written contract omitted all reference to the oral agreement pertaining to the conveyance by defendants to the city of the ten-foot strip in question, notwithstanding that it was intended by all parties that it should embody and include the whole of such oral agreement previously entered into.
A copy of the written contract was attached to and made a part of the amended petition. It is dated March 7, 1950, but it is claimed by plaintiff that such date was erroneously inserted through the mutual mistake of the parties, and that in truth and in fact the written contract was not executed until August 3,1950.
On numerous occasions subsequent to the execution of the written contract, but prior to payment in full by plaintiff for the lots which were to be conveyed to him, defendants promised and agreed that upon full payment by plaintiff they would carry out the remaining portion of the oral agreement of March 29, 1950 — namely, they would convey the ten-foot strip to the city.
On August 10, 1950, plaintiff paid the balance of the $1,500 consideration, whereupon defendants conveyed to him the lots in question and delivered possession thereof.
Notwithstanding full performance by plaintiff, the defendants, in violation of their oral agreement made both prior and subsequent to the execution of the written contract, and despite urgent requests and demands for the same by plaintiff, failed, neglected and refused to convey the ten-foot strip to the city.
In the meantime plaintiff erected a dwelling house on the lots purchased from defendants, and in so doing it was necessary that it be connected with various utilities, including water, gas and electricity. Finally, on February 6, 1951, plaintiff filed this action, claiming actual damages in the amount of $300 based upon the alleged increased expenses incurred by him in connection with the securing of adequate utility connections, together with the fact his property had been diminished in value due to the placement of unsightly light poles “before said dwelling,” all of which was alleged to have been caused by the refusal of defendants to carry out their oral agreement with reference to the conveyance to the city of the ten-foot strip to be used as an alleyway. Plaintiff also sought punitive damages in the amount of $1,000 on account of the alleged malicious and wanton disregard of his rights and feelings.
On the day the action was filed, but subsequent to the hour of its filing, defendants conveyed the ten-foot strip to the city in belated accordance with their prior alleged oral agreement.
Defendants demurred to the amended petition on the ground it did not state facts sufficient to constitute a cause of action. This demurrer was sustained and plaintiff has appealed.
We have no way of knowing the particular ground upon which the demurrer was sustained. In their briefs counsel discuss a number of matters, such as the admissibility of oral evidence to vary and expand the terms of the written agreement, the fact that plaintiff nowhere in his amended petition asks for reformation of the written contract, and whether plaintiff states a case for damages in the first instance.
As we read the amended petition the matter narrows down to this: The parties entered into a written contract which was entirely silent with reference to the alleged oral agreement of defendants to convey the ten-foot strip to the city. It therefore follows that before plaintiff can obtain any relief the written contract must be reformed so as to include those matters which he claims were omitted through mutual mistake.
Conceding, but not deciding, that the amended petition states a cause of action for reformation we still are faced with the question whether it states a cause of action for damages.
On August 10, 1950, plaintiff completed his end of the deal by paying the full purchase price, and defendants promptly conveyed the lots to him. At that time, and subsequent thereto, he knew and was claiming that they were in default of their alleged oral agreement concerning the conveyance of the ten-foot strip to the city. Notwithstanding the existence of this alleged breach he went ahead and erected a house on the lots and now claims that he has been damaged because of the delay and refusal of defendants to carry out the alleged oral agreement, and on account of the placement of unsightly light poles “before said dwelling.”
Aside from the fact it is not alleged that the light poles could not have been placed in a different location with reference to the house, such as in the rear or on that portion of plaintiff’s lots which, together with the ten-foot strip in question, would have formed the alleyway, we think that under the facts alleged plaintiff is in no position to claim damages.
In the face of conditions as he found them, and despite the continued breach by defendants, plaintiff went ahead and constructed his house and placed the light poles in such location as to diminish the value of his property. It is a general rule of law that one may not recover for damages of his own creation. One who is injured by the breach of a contract ordinarily must use reasonable efforts to minimize his damages. In Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717, 26 A. S. 101, it was said:
“Where a party seeks redress for the wrong of another, tire law requires that he shall do whatever he reasonably can, and improve all reasonable opportunities to avoid the consequences and to lessen the injury.” (Syl. ¶ 2.)
In Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579, this court said:
“It is a rule of the law of damages that notwithstanding the fault of the other party the one who is injured in person or property will not be permitted to recover damages which might have been averted by reasonable diligence.” (p. 519.)
See, also, Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941; Lawson v. Callaway, 131 Kan. 789, 293 Pac. 503; Lips v. Opp, 150 Kan. 745, 748, 96 P. 2d 865; 15 Am. Jur., Damages, § 27, p. 420; and 25 C. J. S., Damages, §§ 32, 33 and 34, pp. 499 to 506, as bearing on the general rule that there is a duty upon one who has been damaged or injured by the breach of a contract to minimize his damages, and that he will not be permitted to recover for damages which he might have averted.
Construing the amended petition in its most favorable light we have no difficulty in concluding that it fails to state a cause of action against defendants for damages. The ruling of the lower court in sustaining the demurrer is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Here the defendant was charged with burglary and larceny of a grocery store in Overland Park. He was acquitted of the larceny charge but convicted of burglary, and has appealed.
The state’s evidence established substantially the following:
The witness Rauch, employed as a truck driver for the store, stopped to service it at approximately midnight on August 2, 1949. The store was brilliantly lighted at the time. The rear door was open and “pushed right on in.” As he entered the rear storeroom a man that “didn’t have any shirt on” ran out of the meat department, past the witness and into the darkness. Rauch immediately notified the sheriff’s office at Mission. Stevenson, the officer on duty, testified that about 12:08 a. m., in response to such a call, he dispatched a patrol car to the store.
Witness Stevenson further testified that about 12:50 a. m. he re ceived a telephone call from a woman who said her name was Kladis, at 8601 Woodward, and told him that “someone is breaking in the house,” and that a minute or minute and a half later the same party called back, giving the same name and address and said “cancel the call, that it was her husband coming home.” On cross-examination he testified that he did not know Mrs. Kladis, wife of defendant, had never talked to her on the telephone before or since; that he had never heard the voice before; did not later verify the number given to him as belonging to Mrs. Kladis; and that he did not know whether the two calls were made from the same place or that they were made from 8601 Woodward, or whether they were made from defendant’s residence.
In response to Stevenson’s action in dispatching a patrol car, officers arrived at the store within a few minutes. One of them, Burger, testified that he talked to Rauch, the truck driver, and that he, Burger, saw a 1949 Ford car parked across the street from the store. The keys to it were still in the ignition switch and included “a trunk key for the rear of the car and what I presumed to be a door key.” Investigation via radio with the sheriff’s office established that the car license had been issued to Kladis, the defendant. An ax, bumper jack and a hacksaw frame were found in the car; also a man’s shirt in the back seat. A steel casement window in the back of the store had been broken out and one of the crossbars had hacksaw marks. Officer Burger was unable to find the Kladis residence and enlisted the aid of one Holland, who resided in the vicinity, to assist him. Burger, together with other officers and Holland, went to the Kladis home at 8601 Woodward at about 1:00' o’clock a. m. Mrs. Kladis came to the door. Upon observing there was no car in the driveway, she asked, “Where is our car?” Burger inquired for Mr. Kladis, who, upon being called by his wife, appeared. Apparently there was some conversation concerning his whereabouts during the evening, and he told the officers where he had been up until 9:00 o’clock of the evening before. Upon being asked if he owned a 1949 Ford he replied that he did but that he did not know where it was. He then requested that the officers bring his car home or leave it where it was until the next morning. The officers then placed him under arrest and took him to the store. Rauch was still there and identified defendant as being the man “that ran out of the store.” Defendant had a cut on his hand at the time of his arrest.
The manager of the store arrived at the scene about 2:00 o’clock a. m., and he testified as to finding blood on the floor of the washroom and on the cash register and meat counter; that a steel knob had been knocked from the door of the safe; that he found a part of a hacksaw blade under the window that was broken out; that the cash register showed a loss of $12.87, and that he saw splotches of blood on the ground near a building immediately north of the store.
The sheriff testified that on the next afternoon he and officer Burger brought defendant before the county attorney, at which time the four of them discussed the night’s events. According to this witness, the county attorney advised defendant of his rights, whereupon defendant made some sort of a proposition in which he inquired if it would be possible for him to receive a parole — assuming that he would admit his guilt and tell how it all took place due to the fact he had a few too many drinks the night before on account of being worried over business conditions; that the county attorney advised him that he could not offer any promises and that such matters rested entirely with the court. It further appears that during this conversation the sheriff said something to the effect that it would cost him (the defendant) “ a lot of money to fight it and would be taking food out of his babes’ mouth.”
The sheriff also testified as to a search he made of defendant’s home but that he found nothing which had been taken from the store; and, further, that in the glove compartment of defendant’s car was found a billfold containing $100. It was not contended that this money was stolen from the store.
The county physician testified that in the afternoon following the alleged burglary he examined the defendant and cleansed and treated a laceration on the palm of his hand which bled rather profusely. He further testified that during his examination of defendant he noticed a number of scratches and cuts on his shoulders, chest and arms, obviously the result of contact with a very sharp object, and that they could have been produced by sharp pieces of glass.
In behalf of defendant, a banker of Overland Park testified that on the day before the alleged burglary and larceny defendant had made a deposit of $600 in his bank; that defendant had always carried a satisfactory account with the bank, both savings and checking account; and that several years previous defendant had obtained a loan from the bank in which diamonds appraised at from $3,000 to $4,000 were put up as collateral.
Another witness, a real-estate broker in Overland Park, testified that defendant had purchased two houses from her; that he did not owe her any payments on the home in which he was then living; that he had always met his obligations, and that his reputation in the community for honesty and integrity was good.
A third witness testified as to defendant’s good reputation in the community, and that even after his arrest the people in the community still had the same high opinion of him.
The witness Holland, whose assistance in locating the Kladis residence was sought by officer Burger and who went with the officers to defendant’s home, testified that when the officers knocked on the door Mrs. Kladis answered and the officers inquired if Mr. Kladis was home; that she replied: “Just a minute, I will call him.” That defendant came to the door and wanted to know “what was going on”; that he, the witness, followed in his car when the officers took defendant to the store that night, and that when the truck driver Rauch looked at defendant he, Rauch, said: “It looks like the man,” and that Rauch did not positively identify defendant on that occasion. He further testified that about a day and a half after the night in question he examined defendant for any cuts or scratches on his body and found none.
The defendant testified in his own behalf, and a summary of his testimony is as follows:
He was thirty-five years of age, and after serving in World War II had returned to his former home in Minneapolis, Minn., as a salesman. Later he came to Kansas City as an assistant plant manager of a bakery company. He resigned this position to enter business for himself, with three partners. This latter business was large production of bakery pies. He was married and had brought his six-year-old daughter home from the hospital on the day before the alleged burglary; that after bringing his daughter home he went to his place of business in an industrial section of Kansas City, Mo., to uncrate some machinery; that he placed his billfold in the glove compartment of his car for safety while working; that he worked there until about 9:30 that evening and returned to his home in Overland Park about half an hour later; that on account of garden tools and household goods occupying space in his garage he parked his car in the driveway and did not remove the car keys. After inquiring about his sick child he had something to eat, discussed his business with his wife and went to bed. He denied all charges against him; denied that he had entered the store in ques tion, and maintained that he had been at home in bed until awakened in the early morning hours by his wife, after the officers arrived. He testified that he inquired of them as to the whereabouts of his car after he looked out at the driveway and did not see it, and that he accompanied the officers to the grocery store, at which place he was told to remove his hat, and that a man who was a stranger to him said, “I think that is the man,” and that he was then taken to jail in Olathe, despite his request to be permitted to remain at home with his wife and sick child, and that he remained in jail until the next afternoon.
His version of the conversation with the officers and county attorney was that he was led to believe “that he didn’t have a chance”; that it would be foolish for him to hire counsel as all he would be doing would be taking bread and butter out of his family’s mouths. He further testified that the officers “insisted” his hand be treated for a slight cut which, according to him, he had received the day before while working on a stone patio in his backyard, and that a “huge” bandage was placed upon this small cut. He admitted that the shirt found in the car belonged to him and stated that he had taken it off while working at his place of business and placed it in the back seat- of the car. He further testified that at the time of his arrest he had several hundred dollars in a bank account and was in no financial difficulties.
Defendant complains of numerous alleged trial errors, one of them being misconduct on the part of the county attorney in refusing to make available to defendant certain fingerprint evidence at the preliminary hearing. This complaint is without merit if for no other reason than that neither the state nor defendant called the witness in question on the trial of the case.
Another complaint is that the court permitted the county attorney to amend the information after the trial commenced, without re-verifying or refiling the same. The facts concerning this need not be detailed. We have examined them. The words of the amendment were included in the original information but were inadvertently omitted when it was redrawn pursuant to defendant’s request for more particularity as to another matter. The amendment was merely as to form, permitted by G. S. 1949, 62-808, did not change the issues, and defendant was in no way prejudiced. (State v. Radke, 168 Kan. 334, 212 P. 2d 296.)
Complaint is also made of the court’s refusal to give two instructions requested by defendant on circumstantial evidence and evi dence of previous good character. They, together with those given by the court, need not be set out. We have examined them and in our opinion the court correctly and fully instructed the jury on both matters.
Another and more serious question, however, is raised by defendant in his contention that the court erred in admitting the testimony of the witness Stevenson concerning the two telephone calls he received from the woman who said her name was Kladis at 8601 Woodward. This evidence was strenuously objected to and defendant contends that in the absence of a positive identification of the party calling it was clearly hearsay and therefore incompetent and inadmissible, and was highly prejudicial.
As a broad general rule it is of course true that in order for a telephone conversation to be admissible in evidence identity of the party on the other end of the line must be satisfactorily established. Identification may be by direct evidence or by facts and circumstances. (Underhill’s Criminal Evidence, 4th Ed. §129, p. 177.) The completeness of the identification goes to the weight of the evidence rather than to its admissibility. (The State v. Nixon, 111 Kan. 601, 207 Pac. 854.)
The theory of the state’s case was that defendant drove his car to the store and parked it; was caught in the act of burglarizing the store by Rauch, the truck driver; ran or otherwise got to his home, leaving the car at the scene with the keys, including his house key, in it, and thus was compelled to force his way into his home and at the same time keep his wife in the dark as to his actions and whereabouts. We are advised that defendant’s home at 8601 Woodward is less than a mile and a half from the store. It is to be remembered that Rauch intercepted the alleged burglar at or about midnight. At 12:08 a. m. Stevenson dispatched a patrol car to the scene. At 12:50 a. m. he received the first of the two calls from the woman who said her name was Kladis at 8601 Woodward. In the meantime the officers were searching the store and car for clues and attempting to find the residence of the owner of the car. They did not go to defendant’s home as a result of the two telephone calls in question. The record is silent concerning whether Mrs. Kladis said anything to them at the time about having called Stevenson a short time before. She did not testify at the trial. We are told that she collapsed in the courtroom. It does not appear that defendant requested any continuance so as to make her available as a witness.
Despite Stevenson’s admission that he was not familiar with Mrs. Kladis’ voice, and that he had not talked to her before or since, we think that in view of all the other facts and circumstances established by the evidence the court did not err in permitting him to testify concerning the two telephone calls. The calls themselves are not to be isolated from the other circumstances. On each occasion the party gave her name as Kladis and her address as 8601 Woodward. Defendant and his wife lived at that address. He was found there. There were many other items of evidence which, if believed by the jury, pointed to the guilt of defendant, among them being the identification by Rauch, the blood found in and around the store and the cut on defendant’s hand, his shirt and the hacksaw frame found in the car, the presence of the car itself, and the statements by defendant in the nature of an admission against interest. There is, of course, the possibility that someone stole defendant’s car from his driveway, burglarized the store and then had a woman companion call the sheriff’s office at Mission giving the name Kladis and the address as 8601 Woodward, but we have no doubt that all of those things were argued to the jury. The testimony of Stevenson concerning these calls was undoubtedly damaging to the defense, but such fact is not the test of competency or admissibility. We think that under all of the facts and circumstances the admission of this testimony was not erroneous.
Defendant also assigns as error the rulings of the court below in denying his motion for a directed verdict and his motion for a new trial. Clearly there was sufficient evidence to sustain the verdict of the jury finding defendant guilty of the charge of burglary, and, there being no reversible error in the record, the motion for a new trial was properly overruled.
The judgment of the lower court is therefore affirmed.
Smith, Parker and Wertz, JJ., dissent from subdivision 3 of paragraph 2 of the syllabus and the corresponding portion of the opinion, and are of the opinion that a new trial should be granted. | [
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The opinion of the court was.delivered by
Wedell, J.:
This was an action by heirs at law of a decedent to quiet title to a tract of land and also to recover damages for the alleged conversion of oil from the land. Judgment was rendered for plaintiffs on the first cause of action and against them on the second. Plaintiffs appeal.
We shall continue to refer to the parties as plaintiffs and defendant. The latter is Sinclair Oil and Gas Company, sole appellee.
The appeal involves a pretrial conference and plaintiffs’ contentions require examination of the issues joined by the pleadings. The material allegations of the first cause of action, in substance, were: Plaintiffs were all the heirs at law of John R. Fitch, a widower, who owned the fee title to the land-in question; he died intestate November 10, 1943; plaintiffs are in possession of the land; decedent left no debts other than those incurred during his last illness and death, which have been paid; no administration was had on decedent’s estate; all interest in the land and the oil thereunder passed to plaintiffs on decedent’s death; no attempt was made by creditors or others to have any demand allowed against the estate; defendants claiming title or an interest in the land should be required to assert it; whatever their claims might be they constituted a cloud on the title which should be quieted in plaintiffs.
The second cause of action incorporated the allegations of the first cause of action by reference and, in substance, further alleged: Ever since the death of John R. Fitch on November 10, 1943, all defendants have been producing and transporting oil from the premises without authority; proceeds from the sale of the oil have been divided among them in a manner unknown to plaintiffs; the oil in place and under the ground constituted a portion of decedent’s estate which descended to plaintiffs; the reasonable value of oil removed was $7,500.
Plaintiffs prayed judgment for treble damages.
The answer of the defendant, Sinclair Oil and Gas Company, in substance, alleged:
On April 22, 1925, decedent executed and delivered an oil and gas lease on the premises; Sinclair Oil and Gas Company and the defendant, Sidney P. Clark, by mesne assignments, became and are the owners of an undivided three-fourths and an undivided one-fourth interest, respectively, in such lease, which were duly recorded; at the time of the institution of plaintiffs’ action an oil well, producing in paying quantities, was located on a ten-acre tract of the leased premises (acreage described) and had been so producing at all times subsequent to the expiration of the primary term; on or about July, 1946, the well ceased to produce in paying quantities and was abandoned; on March 27, 1947, this defendant and Sidney P. Clark, executed a release to such ten acres and also to an easement executed by decedent in January, 1940, which release was duly recorded and made a part of defendant’s answer; Sinclair Oil and Gas Company disclaimed any further interest in any portion of the land described in plaintiffs’ petition.
The answer to the second cause of action consisted of a general denial and further alleged:
Whatever claim plaintiffs ever had, if any, under their second cause of action, was barred by the third and fourth paragraphs of G. S. 1949, 60-306.
Plaintiffs’ unverified reply challenged all allegations of the answer which were prejudicial to the causes of action set forth in their amended petition, demanded an accounting of the oil removed from the premises and for judgment including punitive damages.
Refore proceeding it may be well to state the defendant, Sinclair Oil and Gas Company, did not in the district court and does not now rely on the statute of limitations as a bar to plaintiffs’ second cause of action but asserts the court properly rendered judgment in its favor on the merits.
The trial court conducted a pretrial conference authorized by G. S. 1949, 60-2705. The order made following such conference held April 24,1951, recites:
“Thereupon, The plaintiffs made a statement of the nature of his cause of action as set forth in his amended petition, and the defendant, The Sinclair Oil and Gas Company by its attorney, Cecil R. Buckles, made a statement of its defense.
“By stipulation and agreement of the parties, the Court finds that on April 22, 1925 one John R. Fitch, the then owner of Lot 5 and the Southwest Quarter of section 3, townshin 35, south, range 2 east, Sumner County, Kansas, executed and delivered ro the Prairie Oil and Gas Company an oil and gas lease, a photostatic copy of which is to be furnished by the defendant to this court and to be marked exhibit ‘A.’ That on March 18, 1935, John R. Fitch executed a transfer' order to The Federal Land Bank of Wichita, Kansas, assigning his interest in the oil runs produced from 160/384ths of the l/8th royalty interest as provided by exhibit ‘A,’ and that a photostatic copy of said transfer order is to be furnished by the defendant and is to be marked exhibit ‘B,’ said transfer order commencing July 1, 1934.
“The Court further finds that by mesne conveyances and assignments the rights and interests of the Prairie Oil and Gas Company in and to the property covered by said exhibit ‘A’ was transferred to the Sinclair Prairie Oil Company, now the Sinclair Oil and Gas Company, as to Mths interest in the lessee’s rights of said lease to Sidney P. Clark as to a Játh interest thereof.
“The Court further finds that on June 29th, 1939, by an instrument recorded September 14, 1939, a Release in part of said exhibit ‘A’ was made to all but ten acres involved in said real estate described in said exhibit ‘A,’ with one producing oil well thereon. That a copy of said partial release is to be furnished by the defendant and to be marked exhibit ‘C.’
“That on January 3, 1940, one John R. Fitch, by conveyance granted an easement to the then lessee holder of said exhibit ‘A’ which was duly recorded in Book 1-5 in the records of Sumner County, Kansas, at page 400. Exhibit D.
“The Court further finds that this action was commenced originally April 28, 1946 and which action was afterwards dismissed and is represented now by the cause before the court at this time.
“The Court further finds that on March 27th, 1947, by an instrument recorded March 12, ■ 1947, a Release to the remaining portion of said property covered by the oil and gas lease, exhibit ‘A,’ was executed and delivered, terminating all rights of the lessee in and to said property and all mineral interests therein and to the easement rights. That a copy of said Release is to be furnished by the defendant and to be marked exhibit ‘E.’
“The Court further finds that on November 10, 1943, the oil and gas lease, exhibit ‘A,’ was in full force and effect by virtue of the production of oil from said premises on said date, pursuant to said lease.
“The Court further finds that, pursuant to the findings and pleadings, above set forth, plaintiffs claim that they are the owners of all mineral rights in and to the said property from and after November 10, 1943, and which the defendants deny, raising before this Court an issue of law as to the rights of the parties pursuant to the findings heretofore set forth and as presented by a Motion for Judgment, at this time, handed to the Court by counsel for the defendant, The Sinclair Oil and Gas Company, and it directed that plaintiffs shall have fifteen days in which to file a written brief with the Court of their claim and that the defendants shall thereafter have fifteen days to reply, upon service of copies of plaintiffs’ brief on defendants. It is further ordered that the commencement of the fifteen days for the filing of plaintiffs’ brief shall commence running from the date of the filing of the photostatic copies of the exhibits heretofore set forth in this order.” (Our italics.)
The trial court, as reflected by the foregoing pretrial order, made not only the ■ findings indicated therein on the agreed facts but stated the issue of law which remained for decision. It allowed the parties time to file briefs on that issue. Approximately four and one-half months later, September 11, 1951, the court also heard oral arguments of counsel for the respective parties on defendant’s motion for judgment in its favor on the pleadings and findings contained in the pretrial order. It rendered judgment quieting title to the land in plaintiffs, as requested by them and consented to in defendant’s answer, but denied plaintiffs’ claim for damages and taxed the costs to them.
The material part of our pretrial conference statute, G. S. 1949, 60-2705, reads:
“In any civil action pending in a district court, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider: (1) The simplification of the issues; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; (4) the limitation of the number of expert witnesses; (5) the advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury; (6) such other matters as may aid in the disposition of the action. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by 'admissions or agreements of counsel; and such order when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” (Our italics.)
Plaintiffs state that, except as shown by the abstracts of the parties, no record was made of the evidence adduced at the pretrial conference. In view of the uncontradicted record presented here by the abstracts we fail to grasp the intended significance of the statement. The purpose of a pretrial conference is not to introduce evidence concerning which there is a dispute. On the contrary its purpose, in part, is to obtain agreements concerning material evidence if possible. Obviously it was intended the pretrial order should properly recite the action taken at the conference touching the subjects mentioned in the statute. Here the pretrial order states the findings made therein are based on the “stipulation and agreement of the parties.” Plaintiffs do not challenge the accuracy of that recital. Furthermore, we find no motion to set aside any finding contained in the order nor do plaintiffs contend it does not adequately reflect all material matters agreed upon. Under these circumstances there is no occasion in the instant appeal for a ruling respecting the necessity of an official record of the proceedings by a court reporter.
Was defendant’s motion for judgment properly sustained? We need not labor the question whether plaintiffs were entitled to a judgment quieting title to the remaining ten acres of the leased premises when the well thereon ceased producing after decedent’s death. Releases covering the entire acreage and an easement, all recorded, were pleaded in defendant’s answer as well as its disclaimer of any further right, title or interest in the land. The right to judgment in plaintiffs’ favor on their first cause of action was, therefore, confessed by defendant and judgment was properly entered accordingly.
Was defendant entitled to judgment on plaintiffs’ second cause of action for damages alleged to have resulted from the wrongful conversion of oil by defendant after decedent’s death?
Plaintiffs first argue the court erroneously sustained defendant’s motion for judgment for the reason their amended petition stated a cause of action for damages. The judgment was not rendered on a demurrer to the amended petition. It was based on a motion for judgment on the pleadings and facts agreed upon in the pretrial conference. Whether the motion was properly sustained depends upon the soundness of plaintiffs’ next contention.
We need not repeat the allegations of the pleadings or the agreed facts. Plaintiffs’ principal contention is that all the oil, including the seven-eighths working interest of a lessee or assignee, under a producing oil and gas lease, becomes' part of the lessor’s estate on his death and, absent a will, descends to the lessor’s heirs at law; that if defendant claimed any interest in the oil such claim constituted a demand against decedent’s estate which defendant was required to file within the period of the nonclaim statute, G. S. 1949, 59-2239, and that having failed to do so the claim was barred.
This appeal does not require a review of our numerous decisions pertaining to the nature of a demand. It is sufficient to say plaintiffs’ fundamental contention that the working interest of a lessee or assignee in a producing oil and gas lease becomes a part of the lessor’s estate on the latter’s death, is unsound. The decedent-lessor had voluntarily conveyed that interest and was no longer the owner thereof. On his death his estate acquired no greater interest in the land than he possessed. His estate was subject to the rights he had granted to others. In fact, the instant lease expressly recognizes such separate estates in the lessor and lessee or assignee.
It is unnecessary to engage in an abstract discussion of the exact nature or character of a mere oil and gas lease prior to production. Here the lease, except for a ten-acre tract, had been released. On the retained ten acres defendant was operating a commercial oil well prior to and after the lessor’s death. The lease on that acreage was in full forpe and effect at all times material herein. Defendant’s right to continue to produce oil therefrom was a vested right and defendant was protected in exercising such vested right in conformity with the terms of the contract. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398.) The covenants of such a lease ordinarily run with the land. (Thiessen v. Weber, 128 Kan. 556, 561, 278 Pac. 770.) The instant lease expressly recited the covenants thereof extended to the heirs, executors, administrators, successors and assigns of the parties. On the lessor’s death his interest in the land and no more belonged to his estate. Defendant did not lose its vested rights by reason of the lessor’s death. (Benson v. Nyman, 136 Kan. 455, 459, 16 P. 2d 963.)
We are not concerned here with a controversy between heirs alone relative to rights in a decedent’s estate, whether claimed to have accrued prior to or after decedent’s death. Nor is defendant attempting to take something out of decedent’s estate which, if successful, would reduce the residue otherwise remaining for distribution. In other words defendant is asserting no claim whatever to any part of decedent’s estate. It is not interested in that estate. It is merejy defending its own vested rights against an attack by plaintiffs. The demand statute is not applicable.
It also may be well to state if defendant was extracting and removing oil which plaintiffs believed to be a part of decedent’s estate, they had a clear remedy to protect the estate. Nothing prevented their having an administrator appointed who had authority to bring a quiet title action and to recover property belonging to decedent’s estate. (G. S. 1949, 59-1401; In re Estate of Thompson, 164 Kan. 518, 523, 190 P. 2d 879. ) This they failed to do.
Plaintiffs assert the district court lacked jurisdiction to determine the'rights defendant asserted in its answer. Those rights did not pertain to decedent’s estate or to the distribution thereof. The contention is not good. (Sheedy v. Willoughby, 157 Kan. 508, 513, 142 P. 2d 801; In re Estate of Thompson, supra, and cases therein cited.) Moreover, plaintiffs invoked the jurisdiction of the district court for all purposes of their causes of action.
We have not overlooked various cases cited by the respective parties on the subjects heretofore treated. An examination of the facts therein contained discloses no ruling contrary to the conclusion herein reached.
Plaintiffs argue the costs of the action should not have been taxed against them. Defendant’s answer alleged releases of the entire acreage. The releases were admitted in the pretrial conference. Defendant’s answer also disclaimed any further right, title or interest in the lease. Defendant prevailed on the second cause of action. Under these circumstances we shall not disturb the judgment respecting costs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court sustaining a demurrer to plaintiff’s evidence on two causes of action brought for slander of title and to quiet title in plaintiff. For purposes of clarity appellant Anna M. Palmer will be referred to as plaintiff and appellees The Land and Power Company as defendant company and A. L. Newman as defendant Newman.
Plaintiff’s amended petition in pertinent part alleged her residence, that defendant company is a corporation organized and existing in this state and that defendant Newman is a resident of the state and is secretary-treasurer of the corporation; that plaintiff is the owner of the property in question; that on September 28, 1946, plaintiff and her husband entered into a written contract with defendant company for purchase of the premises for the sum of $7,000, $1,500 to be paid at the time of signing the contract and the sum of $500 on November 1, 1947, and each year thereafter on the unpaid balance with interest, with the right to pay any part or all of the principal sum at any time before due; upon full payment of the contract, defendant company was to deliver to plaintiff and her husband a warranty deed to the premises reserving to defendant company for a period of ten years an undivided one-half interest in the minerals under the premises to be conveyed; that on August 6, 1947, plaintiff’s husband entered into an oral contract with defendant company through its agent and secretary-treasurer, defendant Newman, wherein it was agreed that in consideration of full payment of the purchase price then outstanding on the contract, defendant company would convey to plaintiff and her husband the premises in question free and clear of any reservation of mineral rights described in the contract of purchase referred to; that on the same day pursuant to said oral contract, plaintiff’s husband paid to defendant Newman as agent and secretary-treasurer of defendant company the full balance of purchase price then outstanding, to wit, $5,500, and defendant company through its agent Newman executed and delivered to plaintiff and her husband a joint tenancy warranty deed, a copy of which was attached, conveying the land in question free and clear of encumbrances or reservations; that plaintiff’s husband died on November 6, 1947; that about December 15, 1948, plaintiff discovered an error in the description set forth in the deed and through her attorney George Templar, orally notified defendants of said misdescription and made a demand upon the defendants to correct the error; on January 7, 1949, the defendant company executed and placed on record in Cowley County, Kansas, a second general warranty deed, a copy of which was set forth, purporting to grant and convey the premises described, but reserving to the defendant company for a period of ten years from September 28, 1946, a one-half interest in the minerals under the premises conveyed, and that said defendants knowingly, willfully, maliciously, and without probable cause executed and placed on record said second general warranty deed in the office of the Register of Deeds of Cowley County, well knowing the reservations granted in the deed were a false and fraudulent claim and an encumbrance upon the premises owned by plaintiff as described; that said deed was recorded by defendants without the knowledge or consent of plaintiff; that plaintiff had refused to accept delivery of said deed and had so notified defendants in writ ing by letter dated October 12, 1949 (a copy of said letter being attached); and that by reason of the foregoing facts, plaintiff’s title to the premises described has been slandered and defamed by defendants and each of them; plaintiff further alleged that she is entitled to actual damages and punitive damages.
Plaintiff for her second cause of action alleged she is the owner of the described property and in actual possession of the premises and more particularly of all the oil, gas and minerals thereunder; that defendant company claims an undivided interest for a period of ten years from September 28, 1946, in the minerals under the above described premises, but that such claim is false and fraudulent, inferior to and subject to the title of plaintiff.
A demand was made upon the defendants to cease and desist from claiming said interest and to release same of record, but defendants have failed and refused to withdraw their claim or release the same of record. Plaintiff asked that title be quieted in her and defendants be barred from claiming any right, title or interest therein.
Defendants in their respective answers admitted the relationship and residence of the parties, the execution of the contract of purchase, the first warranty deed conveying the property without reservation or exception, and the execution of the second warranty deed; and further alleged that through error and mistake of the scrivener of the first warranty deed, and through mutual mistake, oversight and error on the part of defendants and the plaintiff and her husband, there was erroneously and mistakenly omitted from the first warranty deed an appropriate reservation of one-half interest in the minerals under said land as provided in the contract of sale, and that' through such mutual mistake and oversight it was erroneously and mistakenly prepared, 'executed, delivered and accepted without such mineral reservation; that when defendants discovered such error, they notified plaintiff; that defendants for the sole and only purpose of correcting said error, oversight and mistake in the description in said original deed and in omission of the reservation and exception as set forth in the contract, after consultation with and advice of counsel, did execute, record, and deliver to plaintiff the second warranty deed correcting such errors and mistakes; and defendants prayed judgment for costs. To such answers, plaintiff filed a general denial.
The testimony in support of plaintiff’s petition may be narrated in part as follows: On September 28, 1946, plaintiff and her husband, who is now deceased, purchased the land in question from defendant company under a contract calling for yearly payments of not less than $500 over a period of several years. The contract of purchase gave plaintiff the right to pay all or any part of the agreed yearly payments in advance and reduce the interest accordingly. Upon full payment the defendant company was to deliver to plaintiff and her husband a warranty deed to the premises in question reserving in the defendant company an undivided one-half interest in the minerals thereunder for a period of ten years. This contract was placed of record. Defendant Newman as secretary-treasurer of defendant company carried on the negotiations for sale of the property. Plaintiff and her husband made several advance payments on the purchase price the first year and thus the contract was never in default. In the month of August, 1947, as a result of a visit to his office by Ernest Palmer, plaintiff's deceased husband, George Templar — who for a considerable time had acted as attorney in various matters for the Palmers — called defendant Newman and told him that Palmer wanted to see Newman about whether he could pay off the contract on the land involved and was told by Newman to have Palmer come to see him. On August 6, 1947, less than a year from the time of execution of the contract, the balance due under the contract was paid by the Palmers and a warranty deed was executed by defendant company conveying the premises to the plaintiff and her husband, which deed was an absolute deed reciting a valuable consideration of the sum of $7,000, the receipt of which was acknowledged, and the defendants therein did grant, bargain, sell and convey to plaintiff and her husband the land described therein which is the subject of this action; that defendants agreed to warrant and defend the title thereto and that the same was free and clear of all encumbrances without exception or reservation. Said deed was prepared by defendants and delivered to Mr. Templar, attorney for plaintiff and her husband, for his approval; after approval, said deed was recorded by Mr. Templar and sent to his clients, the Palmers.
Ernest Palmer, husband of plaintiff, who had carried on all negotiations leading to the contract of purchase, died on November 6, 1947. In the settlement of his estate, it was discovered that there had been an error in the description of the land conveyed by the original deed of August 6, 1947, as above set forth, from the defendant company, and that the same mistake appeared in the contract of purchase. The mistake involved only a part of the land described in that Lot 1 was included instead of Lot 3. This suspected error was confirmed by an inspection of the official plat by Mr. Templar, attorney for plaintiff, and defendant Newman. Later, in the year 1948, Mr. Templar approached defendant Newman and asked for a corrective deed describing Lot 3 rather than Lot 1 as a part of the land conveyed. At the first conversation concerning the correction, no mention was made by defendant Newman of any failure to reserve mineral rights as set forth in the original contract of purchase. However, after defendant Newman had confirmed the mistake concerning Lots 1 and 3, he informed Mr. Templar, attorney for plaintiff, that he would have his attorneys prepare another deed correctly describing the land, but that he would include in this corrective deed a mineral reservation as provided in the original contract of purchase; whereupon Mr. Templar informed defendant Newman that Ernest Palmer, deceased husband of plaintiff, had told him that the defendant company had agreed to waive the mineral reservation in the original contract if Palmer would pay the contract off in 1947; Newman replied there was nothing to that. Subsequently a warranty deed was prepared by defendants and submitted to Mr. Templar, which deed contained the reservation of one-half interest in the minerals. Mr. Templar, attorney for plaintiff, refused to accept or approve the deed because it contained such reservation and again informed defendant Newman that the deed was unsatisfactory and unacceptable, the Palmers having always insisted to him that defendant company had agreed to waive the right to reserve an undivided one-half interest in the minerals, as called for in the contract of purchase, if full payment was made in 1947. Notwithstanding rejection of this deed by plaintiff's attorney, défendants caused the warranty deed to be filed of record about January 7, 1949, which deed in addition to correcting the description, as agreed upon, reserved a one-half interest in the minerals to the defendant company, and contained the provision that no consideration was paid therefor by either party; said deed was filed of record without the knowledge of plaintiff or her attorney. Defendants paid the recording fee for the deed and then mailed the original recorded instrument to the plaintiff, stating it was the deed which her attorney requested. The evidence discloses plaintiff's attorney had refused to approve or accept the second deed. At the time this second deed was filed of record, January 7, 1949, there was a certain oil play in the vicinity of the land in question; an acreage was being blocked for the purpose of later drilling for oil and gas; defendant Newman was advised of these operations in September, 1948, by one Mr. Wagner who was thereafter engaged in leasing for the intended development. There were introduced in evidence matters which were of record including the original contract of sale and purchase made between the parties to this action; the first warranty deed executed by defendants to plaintiff and her husband on August 6, 1947, conveying the property without reservations; the subsequent deed, designated corrective, filed for record by defendants on January 7, 1949; and a letter written by defendant Newman dated January 20, 1949, transmitting the second deed after its recording.
Upon presentation of the facts, plaintiff rested her case. Defendants interposed a demurrer on the ground that plaintiff’s evidence failed to prove the causes of action against them. The court, after hearing the argument, sustained the demurrer to plaintiff’s evidence. From that ruling, plaintiff appeals and asserts that the court erred in sustaining the demurrer to their evidence.
At the outset it may be stated that we are called upon to review the sufficiency of plaintiff’s evidence as against defendants’ demurrer and not to weigh the evidence for the purpose of rendering a decision on the merits of the action. In testing the sufficiency of plaintiff’s evidence as against the demurrer we shall follow the often repeated rule of this court that we will under a liberal construction consider all the plaintiff’s evidence as true, consider that favorable to plaintiff together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and will not weigh any part that is contradictory nor weigh any differences between direct and cross-examination. If so considered, there is any evidence which sustains plaintiff’s case, the demurrer should be overruled. (McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Staab v. Staab, 160 Kan. 417, 163 P. 2d 418; In re Estate of Bond, 158 Kan. 776, 150 P. 2d 343; Cain v. Dieter, No. 38,530, ante page 359, this day decided; and cases cited in the foregoing opinions.)
The trial court in ruling on the demurrer seemed to place much stress on the written contract of purchase which was made a part of the petition, and concluded that there was no testimony of any oral agreement modifying its terms, and that there was no consideration for its modification. It must be remembered that the plaintiff’s action is one for slander of title and to quiet title; that the original contract was a matter of record, and that the second deed was placed of record by defendants over the objections and without the consent of the plaintiff. The plaintiff did not bring an action to reform an instrument; that is a matter of defense set up by defendants. All the parties admit the execution of the contract and the first warranty deed. Consideration or lack of it has not been pleaded by the defendants and apparently, as far as this record is concerned, was not before the court. As against the demurrer, the plaintiff was entitled to all inferences and presumptions favorable to her.
It is a general rule of law applicable to all contracts, including deeds, that prior stipulations and agreements are merged in the final and formal contract or deed executed by the parties. When a deed is delivered and accepted as performance of a contract to convey, the contract is presumed to be merged in the deed. So in the instant case, when the original warranty deed was prepared by the defendants conveying to this plaintiff and her husband the property in question free and clear of all encumbrances and containing no provisions for a reservation of one-half interest in the minerals, the inference is that that provision in the contract was waived and superseded by the deed. (Hampe v. Higgins, 74 Kan. 296, 85 Pac. 1019; Read v. Loftus, 82 Kan. 485, 491, 108 Pac. 850; Baker v. Custer, 121 Kan. 383, 247 Pac. 843.) It has been held that articles of agreement for the conveyance of land are in their nature executory and the acceptance of a deed in pursuance thereof is to be deemed prima facie an execution of the contract and the agreement thereby becomes void and of no further effect. (84 A. L. R. 1008, 1015n; 26 C. J. S. 340 et seq.)
Next, as to the court’s contention that there was no consideration, G. S. 1949,16-107 provides:
“All contracts in writing, signed by the party bound thereby,' or his authorized agent or attorney, shall import a consideration.”
In view of this statute, plaintiff was entitled to the presumption that when the original deed was executed following the contract of purchase, a consideration was imported. It may be noted that defendants did not plead failure of consideration either in the making of the contract or deed; their only defense was that there was a mutual mistake between the parties in not including the mineral reserva tion in the original deed. Where the validity of a deed duly executed and recorded is called into question for want of consideration, undue influence exerted over the grantor, failure of delivery, or the existence of a contract concerning the same, such matters must be established by satisfactory and convincing evidence by the party making such allegation before the deed can be held invalid, and if either want of consideration or failure of delivery is a matter relied upon, the presumption in connection therewith must also be overcome by evidence. (Carver v. Main, 146 Kan. 251, 69 P. 2d 681.)
Want of consideration is an affirmative defense. G. S. 1949, 16-108 provides:
“The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.”
The presumption of consideration is not a presumption of law, it is a presumption of fact. It extends to any fact which under the situation and circumstances of the parties might reasonably supply a consideration, and it cannot be overthrown except by proof of facts warranting the inference of no consideration of any kind. It is always an affirmative defense, and may not be inferred or presumed. (Carver v. Main, supra; and cases therein cited; Chisholm v. Snyder, 145 Kan. 573, 66 P. 2d 606.)
Plaintiff’s evidence presented first, a general warranty deed from defendants to plaintiff and her husband reciting a valuable consideration and conveying the premises in question free and clear of all encumbrances without reservations of any kind; the deed was filed of record; subsequently a minor error was discovered in the description which error defendants admit; a deed correcting the description was requested by plaintiff and defendants agreed to furnish such deed; in furnishing said deed defendants inserted therein a mineral reservation not included in the former deed; plaintiff refused to accept the deed containing the reservation and so notified defendants; defendants over plaintiff’s protest recorded said deed, paying the recording fee therefor, and subsequently forwarded the recorded deed to plaintiff; plaintiff again demanded of defendants that they release such deed of record, which demand was refused; and this action was brought asserting slander of title and asking that title ,be quieted in plaintiff. Assuming the truth of all the evidence standing alone, and giving it the benefit of all inferences and presumptions to which it is entitled, it cannot be said as a matter of law that the evidence was not sufficiently clear and satisfactory to withstand a demurrer.
In view of what has been said, the case is reversed and remanded to the lower court with instructions to overrule the demurrer and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Parker, J.:
On March 19, 1946, the parties to this action executed an ordinary farm lease on an eighty-acre tract of real estate located in Shawnee county. The instrument was dated March 1, 1946, and, under its terms, the plaintiffs leased defendants the property for a term of twelve months ending on the last day of February, 1947, for a rental of $550. On the same day defendants executed and delivered plaintiffs a note, pursuant to the terms of the rental agreement, for the total amount of rent therein specified, whereby they promised to pay the latter twelve monthly payments of $20 each, payable on the first day of each month beginning March 1, 1946, up to and including February 1, 1947, $100 on March 1, 1946, $110 on June 1, 1946, and $100 on Novenlber 1, 1946. Without further written agreement defendants continued in possession of the leased premises until January 18, 1949, when plaintiffs commenced an action against them for rent alleged to be due for their occupancy thereof at an annual rental of $550 per year.
The record discloses that defendants filed an answer and cross petition in the action about a month after it was instituted. It also reveals that two months thereafter they filed a first amended answer and cross petition. Later, on September 12, 1949, they filed their second amended answer and cross petition. In their last cross petition defendants, for the first time, alleged plaintiffs perpetrated fraud on them in an attempt to hold them over as tenants for the years 1947 and 1948, under the lease of March 1, 1946, when $110 of the $550 rental mentioned therein was not for rent at all but was to reimburse plaintiffs for plowing thirty acres of ground prior to the time they took possession of the farm ground and asked for reformation of the lease of March 1, 1946, excluding the sum of $110 therefrom for the farm years of 1947 and 1948. In addition they also asked for a money judgment against plaintiffs under and by virtue of these and other allegations of their cross petition.
At this point it should perhaps be stated that although all three of the answers and cross petitions, to which we have heretofore referred, contain allegations raising questions pertaining to the amount of rent due under the lease as executed and damages claimed to have been sustained by defendants as a result of plaintiffs’ conduct during their occupancy of the leased premises, we have purposely refrained from detailing them for the reason, as will presently be disclosed, issues raised by such allegations are not here subject to appellate review.
Shortly after defendants filed their second amended answer and cross petition it was decided at a pretrial conference that the newly injected question of reformation of the lease as pleaded in the cross petition was an equity not a jury matter and should be disposed of by the court in advance of issue triable by a jury. Thereafter, such issue came on for hearing before the trial court which ultimately sustained a demurrer to the evidence adduced by defendants in its support. Thereupon defendants took an appeal from that ruling to this court where they now impliedly concede, if in fact they do not actually do so, that the sole question involved on appellate review is whether the trial court erred in holding that under their evidence any right they might have had to reform the lease on grounds of fraud was barred by the statute of limitations.
Obviously realizing that under the allegations of their cross petition they are seeking affirmative relief and recognizing that under our decisions (Collins v. Richardson, 168 Kan. 203, 208, 212 P. 2d 302; McCarthy v. Sink, 152 Kan. 659, 107 P. 2d 790; Howard v. Howard, 149 Kan. 223, 86 P. 2d 510; Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453) construing the provisions of G. S. 1949, 60-313, we have held that a cause of action barred by the two year statute of limitations (G. S. 1935, 60-306, third) cannot be used as a set off or counterclaim or for the purpose of obtaining affirmative relief, the sole and only claim advanced or argued by appellants as a ground for reversal of the trial court’s action in sustaining the demurrer is that the evidence before such court at that time disclosed that the fraud relied on was not discovered by them until appellees filed their action on January 18, 1949, hence their right to reformation of the lease in question was not barred by the statute of limitations.
Our statute G. S. 1949, 60-306, provides that a cause of action based on fraud, where real property is not involved, cannot be maintained unless brought within two years after such cause of action shall have accrued. However, the third subdivision of this section of the statute contains a provision that “the cause of action in such case shall not be deemed to have accrued until the discovery of fraud.” Just what the words “discovery of the fraud” as used in such subdivision mean is no longer an open question in this jurisdiction. Long ago in City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807, we held:
“In the subdivision of the statute of limitation relating to actions for relief on the ground of fraud and providing that a cause of action shall not be deemed to have accrued until discovery of the fraud (R. S. 60-306, third), discovery of the fraud means discovery of such facts as would, on reasonably diligent investigation, lead to knowledge of the fraud.” (Syl. ¶ 2.)
For a more recent decision, placing a like construction on the phrase under consideration in the case just cited, see Gates v. Kansas Farmers’ Union Royalty Co., 153 Kan. 459, 111 P. 2d 1098.
Before giving consideration to the evidence we pause to point out that even though appellants’ cross petition contains the state ment, “That plaintiffs’ perpetrated fraud on the defendants in the attempt to hold them over as tenants for the years 1947 and 1948 under the lease of March 1, 1946,” it is clear from an examination of all its allegations the gist of the cause of action on which they base their right to relief is fraud in the inception of the lease under which they held over as tenants from year to year, not fraud in inducing them to hold over as tenants of that character after its initial term had expired. It necessarily follows that in the absence of anything to suspend its operation the two year statute of limitations (G. S. 1949, 60-306, third) started to run on appellants’ cause of action for reformation of the lease from the date of its execution.
Turning to the record and limiting our review thereof strictly to evidence touching the bar of the statute we find:
Carl A. Kendall, one of the appellants, testified he signed the lease on March 19, 1946, that he knew it called for $550 each year, that he sent Ray Woodworth back to the house to have Mrs. Kendall sign it and that he never looked at it thereafter until after the suit was filed. However, while testifying as a witness he stated that he paid Woodworth $550 in compliance with the terms of the lease to March 1, 1947. He also admitted that he understood in March of 1947 that if he continued to keep the premises without a new lease that he would hold over under the old lease at the same rent.
While testifying as a witness Eleanor Kendall, wife of Carl A. Kendall, and one of the appellants, stated that when Ray Wood-worth first brought the lease to the house she read it over and refused to sign it unless Carl did, that thereafter Woodworth brought the lease back with Carl’s signature on it, that she then signed it and put their copy away in the top chest drawer. In response to a question she said “We never discussed it from that day on” and added “we had our discussion before.”
Marjorie Kendall, a daughter of the appellants and a student at Washburn college, testified that she was present at the farm home when Mr. Woodworth came out with the lease on March 19, 1946; that he brought the lease into the house and Mrs. Kendall read it; that Mrs. Kendall refused to sign it, saying she didn’t feel that it was what they had agreed; that after Mr. Woodworth brought the papers back, signed by her father, her mother signed them.
Based on the foregoing evidence we are constrained to hold the record as presented discloses that both of the appellants had actual knowledge of the alleged fraud relied on as grounds for reformation of the lease as early as the last day of March, 1947. Of a certainty it establishes that they had knowledge of facts sufficient to cause reasonably prudent persons to investigate as of that date and that if they had investigated with reasonable diligence they would have ascertained the existence of the very facts on which they now attempt to base a cause of action. The result, since it cannot be denied the involved cause of action was commenced more than two years after March 31, 1947, is that any right appellants may have had to reform the lease in question is barred by the statute of limitations and the trial court did not err in sustaining the demurrer to the evidence adduced by them in support of that particular phase of the case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This appeal is from an order of the district court sustaining a demurrer to appellant’s motion to quash and dismiss a warrant issued by the county court. The pertinent facts may be stated as follows: In April, 1950, the appellant, duly charged in an information of obtaining money under false pretense, and after a jury trial, was found guilty, and on April 11, 1950, he was sentenced to serve a term in the state penitentiary not exceeding five years. A certified copy of the judgment and sentence of the court was delivered to the sheriff and he was directed to convey the appellant to the state penitentiary at Lansing. While attempting to do so and on April 13 the appellant escaped from the sheriff. He was apprehended two days later and on April 20 the sheriff took him to Lansing and turned him over to the warden of the penitentiary. On April 21, 1950, a complaint was filed in the county court, upon which a warrant was issued charging the appellant with unlawful escape from the sheriff. A copy of this warrant was forwarded to the warden of the penitentiary. There was no further court proceeding until August 8, 1951, on which date the appellant filed in the county court a motion to quash the warrant charging escape upon the grounds, that he was being denied his rights under the fifth, sixth and fourteenth amendments to the Constitution of the United States and also under section 10 of our Bill of Rights. With the motion he filed a brief in which he contended that his constitutional rights were denied him because more than two terms of the district court had elapsed since the charge of escape was placed against him in the county court. In support of his motion he cited an unappealed decision of one of our district courts, which has never been officially called to our attention. He further alleged that he had been denied his constitutional rights because more than the second term of court had elapsed since the issuance of the complaint against him in the county court; that he was in the custody of the sheriff from April 15 to April 20 without the warrant being served upon him and without being arraigned on that charge, and that at all times since he was apprehended after his alleged escape he had been within the jurisdiction of the county court and that he had been denied a speedy and public trial on that charge, citing Ex Parte Virginia, 100 U. S. 339, and United States v. Harris, 106 U. S. 629. The judge of the county court denied the motion after full consideration thereof. On August 29, 1951, appellant appealed from the ruling of the county court to the district court. There the county attorney on October 3, 1951, filed a motion for an order dismissing the attempted appeal for the reason that the order from which appellant attempted to appeal is not an appealable order, and that the appellant had not takén or perfected his appeal in the manner provided by law. The motion contained a demurrer to each cause of action attempted to be stated by appellant for the reason that the facts stated therein were insufficient to state any cause of action. This motion was served upon the appellant by registered mail. It came on to be heard in the district court on November 1, 1951, the appellant appearing by his attorney and the State appearing by the county attorney. After a hearing the court found that the State’s demurrer to each cause of action attempted to be stated in the motion by appellant should be sustained and that it was not necessary to rule upon appellee’s motion to dismiss. It was from this order that the appellant has appealed to this court.
In this court the appellee has filed a motion to dismiss the appeal on the ground that the appeal is not taken from an appealable order. We have concluded that motion should be sustained. The procedure in criminal cases is governed in this state by statute. Appellant cites no statute which authorizes an appeal such as is attempted here. The rule is well established that a defendant in a criminal case has no right of appeal until after final judgment against him, in which appeal, however, intermediate orders complained of may be reviewed. In State v. Edwards, 35 Kan. 105, 10 Pac. 544, it was held:
“An appeal in a criminal action can be taken by a defendant only after judgment, and an intermediate order of which he complains can be reviewed only on such an appeal.” Citing Cummings v. State, 4 Kan. 225, and State v. Freeland, 16 Kan. 9.
In State v. Coffelt, 66 Kan. 750, 71 Pac. 588, it was held:
“In criminal cases which are brought to the supreme court by appeal intermediate orders made in the progress of the trial can be reviewed only after judgment.”
In State v. Levine, 125 Kan. 360, 264 Pac. 38, it was held:
“In a criminal action, an appeal does not lie from an order denying a motion to quash an indictment or from an order sustaining a demurrer to a plea in abatement filed against it until after trial on the indictment and final judgment has been rendered.” Citing many authorities.
This case was cited and followed in State v. Rogers, 142 Kan. 841, 52 P. 2d 1185. See, also, State v. Brown, 144 Kan. 573, 61 P 2d 901, where it was held:
“In a criminal action an appeal does not lie from an order sustaining a demurrer to a plea in abatement until after trial and final judgment on the information.” Citing many authorities.
See, also, State v. McCombs, 164 Kan. 334, 188 P. 2d 922, to the same effect.
Appellant seems to rely upon our statute (G. S. 1949, 62-1431), which reads:
“If any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged. . . .”
That section has no application to the present situation. There is no contention that any information has been filed on the charge of unlawful escape from the sheriff. Reliance upon that section is premature.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for misrepresentations made in connection with' a sale of real estate, and from a judgment in favor of plaintiffs the defendant appeals.
The action was commenced on August 18, 1950, in the city court of Kansas City. In their bill of particulars plaintiffs alleged that on November 18, 1947, they entered into a written option purchase contract for certain described real estate at an agreed price of $4,500, and at that time defendant stated and represented to them that the drainpipes in the house situated on the real estate were connected to and emptied into the city sewer system; that about the latter part of September, 1948, plaintiffs discovered that the drain pipes were not so connected but drained into a pit on the rear of the property, and at the time of discovery the pit was overflowing and sewage lay on top of the ground; that plaintiffs could not have discovered the falsity of defendant’s statement about the drains connecting with the city sewer by ordinary inspection of the property; that such statements were wilfully, maliciously and wantonly made for the purpose of defrauding plaintiffs; that the actual value of the real estate at the time of plaintiff’s purchase was $3,800 instead of $4,500 and plaintiffs had been damaged in the sum of $700; that by reason of the false statements and the wanton and malicious manner in which they were made with deliberate attempt to injure the plaintiffs, they were entitled to punitive damages in the sum of $250; and they prayed judgment for these sums.
Trial in the city court resulted in a judgment for defendant. Plaintiffs appealed to the district court, where defendant filed an answer containing a general denial and an allegation that plaintiffs’ cause of action was barred by the statute of limitations.
A trial by jury was had. Defendant’s demurrer to plaintiffs’ evidence was overruled, defendant offered her evidence, the cause was submitted to the jury under instructions of which no complaint was made and the jury returned a verdict in favor of plaintiffs and against defendant for actual damages of $700 and punitive damages of $250. Defendant’s motion for judgment notwithstanding the verdict and her motion for a new trial were denied and she perfected her appeal to this court, her specification of errors covering the matters hereafter discussed.
Consideration of appellant’s complaint that the trial court erred in overruling her demurrer to appellees’ evidence requires a brief review of the evidence. The evidence disclosed that on November 18, 1947, appellant and appellees entered into a written contract that in consideration of the sum of $1,000 paid to appellant by appellees, the appellees were given until January 1, 1948, the option to purchase the involved real estate for $4,500 and the right to extend the option from month to month thereafter by the payment of $35 on the first day of each succeeding month thereafter. Endorsements on the contract showed that it had been fully complied with by appellees up to the time of filing the action. Without detailing the evidence of any witness, the proof tended to show that prior to the execution of the contract appellees inspected the house on the real estate, inquired about the drains from the bath, toilet and kitchen sink and were informed by appellant the drains were connected with the sewer in the street; that in September, 1948, the sewer stopped up and on inquiry then made it was found the drains connected with the cesspool in the back yard and not with the sewer; that efforts to secure settlement were unavailing and action for damages was commenced. Other evidence tended to show the value of the premises with and without sewer connections. Other evidence tended to show that appellant was warned by a third party that if she sold the property she had better tell the buyers the property was not connected with the sewer and appellant replied it was on the sewer. We note further that appellant, testifying iñ her own behalf, stated that one of the appellees asked her if the property was connected to the sewer and that she answered, “The sewer is across the street.”
The appellant presents four grounds that the trial court erred in overruling her demurrer to the evidence.
I. She first asserts that if there was any fra'ud the appellees have waived it by continuing to make the payments due under the contract after they had discovered the fraud, and in support she directs attention to Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429; and McLean v. Clapp, 141 U. S. 429, 35 L. Ed. 804, 12 S. Ct. 29. Examination of those decisions discloses that in each the action was not one on the contract to recover damages, but was one to rescind. Such cases are not in point here. The general rule applicable here is that a party defrauded in the making of a contract, who discovers the fraud after having partly performed, may continue with performance and also have his action for damages. See annotation on “Proceeding under executory contract after discovering fraud as waiver of right to recover damages for the fraud” in 13 A. L. R. 2d 807, 815. The rule above stated is the rule in Kansas. See Bushey v. Coffman, 109 Kan. 652, 201 Pac. 1103, where it was held:
“A party induced by fraudulent representations to enter into a contract which has been partly performed before the discovery of the fraud, does not waive the fraud by an election to affirm the contract, complete its performance and retain what was received under it, and is not precluded from recovering damages sustained by reason of the fraud because of delay if his action is begun within the period fixed by the statute of limitations.” (Syl. f 3.)
II. Appellant also contends that the statute of limitations commenced to run from the date of the contract. The gist of the con tention is that nothing prevented appellees from making a full and complete inspection of the premises, and, inferentially that they did make inquiry concerning the sewer and cannot now be heard to say they were damaged by something concerning which they sought information and which, by the exercise of more diligence, they might have learned. It seems to us this contention is entirely without merit. Appellees made inquiry from appellant, who knew but concealed the fact. We know of no rule of law that would compel the appellees to have made inquiry throughout the neighborhood to determine whether appellant had told the truth, nor to have searched records, if any were available and there is no showing there were any, to discover whether a sewer connection had been made, nor to have conducted an excavating expedition to learn the fact. Without further discussion, we hold that appellees’ cause of action accrued when they discovered the fraud on the occasion when the drains from the house to the cesspool in the back yard clogged and the fact they were not connected to the sewer then became known.
III. Appellant also makes some contention that a sewer is a drain to convey off water or filth underground, and that the connection to the tank, pit or cesspool in the back yard was a connection with the sewer. It is quite evident this is an afterthought. The record discloses rather clearly that neither the appellees nor the appellant considered that inquiries made and answered referred to any connection with a cesspool, and our statutes pertaining to first-class cities, of which Kansas City is one, clearly indicate that a cesspool is not a sewer (see G. S. 1949,13-436).
IV. Appellant directs attention to Wyatt v. Taylor, 166 Kan. 453, 457, 201 P. 2d 647, where it was held that one who asserts fraud has the burden of proving it by a preponderance of the evidence which must be clear, convincing and satisfactory, and she contends the evidence did not meet that test. The above rule applies where the evidence is to be weighed in arriving at a judgment, but does not apply where the evidence is attacked by demurrer. The oft repeated rule is that in considering a demurrer to evidence the trial court cannot weigh evidence but must consider it and all reasonable inferences that may be drawn in favor of the party offering it. Among other cases where both of the above rules have been considered are In re Estate of Bond, 158 Kan. 776, 780, 781, 150 P. 2d 343, and Staab v. Staab, 160 Kan. 417, 163 P. 2d 418. In the latter case it was held:
“In order to decree the relief sought in an action such as that described in paragraph one of the syllabus plaintiffs’ evidence should be carefully weighed and must be clear and satisfactory. On a demurrer, however, courts are not permitted to compare portions of such evidence or to weigh it but must accept it as true, consider only the favorable portions thereof and resolve all inferences which reasonably may be drawn therefrom in favor of the plaintiffs. If, when so considered, the evidence fairly tends to establish a cause of action the demurrer should be overruled.” (Syl. j[ 2.)
The appellees’ evidence was not subject to demurrer for any of the reasons asserted by the appellant.
Appellant contends that the trial court erred in denying her motion for a new trial.
A part of her complaint that the evidence did not support the verdict has been considered in discussing the demurrer. Without repetition of the evidence we are of the opinion that it fully supported the finding inherent in the verdict that appellant misrepresented to the appellees that the drains were connected with the sewer, and that there was clear, convincing and satisfactory proof thereof, as in effect the trial court held.
Appellant also contends that the evidence did not justify any award of punitive damages against her, her contention being there was no evidence of concealment on her part. No complaint is made as to the instructions of the court to the jury for its guidance in determining whether such damages should be allowed, nor the amount. There is no contention the jury disregarded the court’s instructions, nor that the verdict was excessive. Appellees’ evidence tended to show concealment and appellant’s own testimony tended to show, if not concealment by affirmative act, a statement tending to deceive. The jury, by its verdict, found that appellant was guilty of wilful misrepresentation. The trial court not only approved the verdict, but denied the motion for a new trial. By analogy this case is quite like that considered in Martin v. Hughes, 156 Kan. 175, 131 P. 2d 682. What is there said as to when punitive damages are recoverable need not be repeated, but that decision and those cited therein demonstrate that the award in this case was proper.
No error of the trial court has been made to appear and its judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Harold M. Craven filed his petition in the district court of Leavenworth county for a writ of habeas corpus to procure his release from the state penitentiary. The warden of the penitentiary answered, a trial was had, petitioner was denied relief and he has appealed to this court.
As set forth in his petition the gist of plaintiff’s allegations that he was entitled to his discharge was that on January 13, 1942, the district court of Sedgwick county sentenced him to the state penitentiary for a term of from five to ten years, and under the statutes allowing time credits, he was entitled to his discharge on September 30, 1948; that under the statutes of Kansas (G. S. 1949, 62-1518) his time for service to the state commenced on the date of his sentence; that the respondent computed the commencement of his sentence" as of September 30, 1948, and in violation of plaintiff’s rights under the fifth, sixth and fourteenth amendments of the constitution of the United States and the sixth and eighth sections of the bill of rights of the constitution of the state of Kansas; that his sentence had expired and he was entitled to his release and he prayed for such relief.
The respondents answered, alleging that on October 12, 1932, plaintiff had been convicted of a felony in the district court of Sedgwick county, and sentenced to the state penitentiary for a term of from ten to twenty-one years; that on July 1, 1941, he had been paroled; that while he was on parole and on January 13, 1942, he was convicted of a felony in the district court of Sedgwick county and sentenced to the state penitentiary for a term of from five to ten years (this is the sentence alleged in plaintiff’s petition); that on January 18, 1942, plaintiff was declared delinquent and returned to the state penitentiary as a parole violator; that when he was received at the penitentiary on January 18, 1942, as a parole violator he was required to finish the sentence imposed on him on October 12, 1932; that he was discharged from this sentence on September 30, 1948, and at that date he was booked and started serving the sentence imposed on him on January 13, 1942; that the term fixed by this last sentence had not expired nor had it been commuted by the governor of the state of Kansas, and that plaintiff was not entitled to his discharge.
We pause here to note that under G. S. 1949, 62-1528, originally enacted as Laws 1903, chapter 375, section 8, and never since amended, it is provided, in substance, that if any prisoner shall violate the conditions of his parole he shall be declared a delinquent and treated as an escaped prisoner owing service to the state, and when arrested shall be liable to serve the unexpired term of his maximum possible sentence, and that any prisoner upon parole, who shall commit a fresh crime and upon conviction thereof shall be sentenced to the penitentiary, shall be subject to serve the second sentence after the first sentence is served or annulled, the second sentence to commence from the termination of his liability upon the first or former sentence.
At the trial in the district court there was no dispute of fact. Plaintiff there made two contentions, one that the trial judge in sentencing him on January 13, 1942, did not specify his sentence then imposed should not conmmence until he had fully served the first sentence, and that G. S. 1949, 62-1528, above mentioned; could not be retroactively applied to him. Although not clearly shown, plaintiff apparently believed that because the statute above mentioned was printed in the 1949 statutes, it was a new enactment in 1949. As has been noted, the trial judge denied the writ.
In this court the plaintiff does not urge any question that the trial court must have provided the sentences should run consecutively. The fact is that when sentence was imposed, on January 13, 1942, he had not then been declared a delinquent, that did not occur until January 18, 1942, when he was returned to the penitentiary. Plaintiff’s contention that G. S. 1949, 62-1528, has been retroactively applied to him is based on his misapprehension that that section was not enacted until 1949, for it has been the law since 1903. There was no retroactive application of the statute. There is no doubt that under the above statute and under our decisions, when a person has been convicted of a felony and sentenced to the penitentiary where he is confined and thereafter receives a parole before completing his sentence, and while on parole commits a fresh crime of which he is convicted and for which he is sentenced, that upon his being declared delinquent and arrested and returned to the penitentiary, he must serve the unexpired term of his maximum possible imprisonment under his former sentence before commencing to serve his second sentence (Wears v. Hudspeth, 167 Kan. 191, 205 P. 2d 1188; and In re Graves, 154 Kan. 407, 118 P. 2d 542). Other than that the statute mentioned may not be retroactively applied, plaintiff makes no contention that he is deprived of any right guaranteed to him by the constitution of the United States or by the constitution of this state. We have no hesitancy in holding that plaintiff was not and is not entitled to his release on the grounds just discussed.
Although not alleged in his petition, and apparently not raised in the trial court, plaintiff here contends that the judgment of the trial court of January 13, 1942, as reflected in the journal entry, was insufficient to warrant his incarceration for the reason the journal entry does not contain a statement of the statute under which he was sentenced as provided'by the statute which now appears as G. S. 1949, 62-1516. There is no contention that the sentence imposed is not one provided for by the statute, merely that the statute is not specifically mentioned. The defect is formal and may be corrected by a nunc pro tunc order. See Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, and numerous other decisions mentioned in the annotations to the above section in our 1949 statutes.
The judgment of the trial cpurt denying the writ of habeas corpus is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action for recovery of money for professional services rendered appellants (defendants below) by appellee, the petition setting out the total bill, the amount paid thereon, and the balance owing. Judgment was for plaintiff (appellee) in the amount of $549.60, the amount sued for, and defendants appeal.
It is conceded that the original action was filed February 14, 1950, and that issues were joined between the parties on plaintiff’s third amended petition and defendants’ answer and counterclaim thereto. In the petition plaintiff sets out the itemized account showing professional services and medicines furnished beginning July 29, 1943, and ending March 4, 1949, in the amount of $714.10 and showing payments made on the account by defendants on dates from August 23, 1944, to March 4, 1949, in the sum of $164.50, leaving a balance due plaintiff on that date of $549.60.
Upon the court’s overruling defendants’ demurrer to the petition, defendants filed an answer consisting of a general denial except that defendants admit plaintiff was a duly authorized and licensed physician but allege that part of the services and medicines were wrongfully sold and dispensed by employees of the plaintiff who were, not authorized by law to so act. Defendants further admitted the payments made as listed by plaintiff on the dates mentioned in the petition, but stated that defendants did not direct plaintiff to apply said payments on the particular account sued upon, and by way of counterclaim defendants alleged they were entitled to a credit of $41.25 on said account and that plaintiff failed to so credit that amount, and asked for judgment on their counterclaim in the amount of $41.25, or so much thereof as they might be entitled to recover over and above plaintiff’s claim. The case was tried on the issues joined, and the jury returned a general verdict in favor of the plaintiff.
Defendants assert error in the overruling of various motions to strike and to make definite and certain. No substantial rights of defendants were affected by the court’s rulings and we have repeatedly held that motions to strike and to make definite and certain rest in the sound discretion of the trial court and rulings thereon are not appealable unless they affect a substantial right and in effect determine the action. (Krey v. Schmidt, 170 Kan. 86, 223 P. 2d 1015, and cases therein cited.)
Defendants next complain of the overruling of their demurrer to plaintiff’s third amended petition, their motion for judgment notwithstanding the verdict, and their motion for a new trial; and predicate error thereon on the theory that plaintiff’s cause of action was barred by the three-year statute of limitations, that the pay ments made by defendants as set forth in the petition were applied to an old account existing prior to July, 1943, and that later said payments were applied to the account sued on without defendants’ consent. Nowhere in defendants’ pleadings or in their evidence do they allege or show that they at any time requested plaintiff to apply payments to any particular part of the account. Rules governing the application of payments on an account have no field of operation when the payments so made have already been specifically applied by the parties or either of them, and defendants are in no position, in the absence of an agreement, to complain of plaintiff’s action in applying the payments made to the open account as of the date each payment was made. (Medical Co. v. Hamm, 89 Kan. 138, 130 Pac. 650.) Plaintiff testified that each payment was credited on the account and the balance carried forward; the books show this and that application of payments was made by plaintiff when each payment was made rather than when any petition or amended petition was filed. Plaintiff’s pleadings and evidence clearly disclose an open, running account beginning July 29, 1943, and continuing as such until March 4, 1949, and that the defendants made payments on the account on diverse dates between August 23, 1944, and March 4, 1949, in the total sum of $164.50. The record clearly discloses this was an open, running account kept by plaintiff in which he entered a connected series of debits and credits, and it was not intended the individual items should be considered separately but as a continuation of a related series. In such a situation, the following rule applies:
“Where there is an open, running, mutual account between two persons, each person does not have a separate cause of action for each separate item of the account, but only the person in whose favor there is a balance due on the account has a cause of action for such balance against the other. The statute of limitations does not run against each item separately, but only against the balance due; and it will commence to run only from the time of making the last item rightfully credited to the party against whom the balance is due. Each item thus credited to the party against whom the balance is due is a payment or part payment, not of any particular item against him, but of the balance due against him, and is, in one sense, a payment or part payment of every item rightfully charged against him in the whole account.” (Waffle v. Short, 25 Kan. 503.)
See, also, Bundy v. Liberty Life Ins. Co., 150 Kan. 658, 95 P. 2d 550. In the instant case, the statute did not begin to run on any part of the account until March 4, 1949, the date of the last payment on the account, and this action was commenced on February 14, 1950, well within the three-year statutory period.
We have examined other specifications of error asserted by defendants and find nothing contained therein warranting a reversal of this action. We find no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff in an automobile accident. In her petition plaintiff alleged that on a day stated she was riding in the rear seat of a described automobile driven by defendant; that “defendant was the husband of the plaintiff at all times set forth herein.” It was further alleged that defendant negligently handled the car in such a way that it was turned over and that she was seriously injured. Details of those allegations need not be stated. Defendant answered denying the allegations of negligence alleged against him in the petition and admitted “that defendant and plaintiff were husband and wife at all times material to this action.” Proceeding under our statutes (G. S. 1949, 60-2704 and 60-2902) defendant filed a motion in which the court was asked to determine a question of law in advance of the trial upon the facts, which question was stated as follows:
“Whether or not a married woman may maintain an action in tort for injuries to her person against her husband in the state of Kansas.”
This legal question presented was duly heard by the court and decided in the negative. Judgment was rendered for defendant. Plaintiff has appealed. The sole question presented for our determination is the correctness of the trial court’s ruling upon the question presented.
At common law it was well settled that one spouse could not sue the other in tort for personal injuries. (See 27 Am. Jur. 191; 41 C. J. S. 877.) Our statute (G. S. 1949, 77-109) provides:
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute in this state, but all such statutes shall be liberally construed to promote their object.”
Counsel for appellant, however, points to our Constitution (Art. 15, § 6), which reads:
. "The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.”
He also cites our statute (G. S. 1949, 60-404), which reads:
“A married woman may sue and be sued in the same manner as if she were unmarried.”
A similar statement is found in G. S. 1949, 23-203, which is one of the sections of what is commonly called the Married Women’s Act.
Counsel for appellant argues that the statute last above quoted appears to give plaintiff the right to sue her husband in tort as well as in any other type of action. Upon this point counsel cites but one Kansas case (Norris v. Corkill, 32 Kan. 409, 4 Pac. 862.) That was a case in which the husband had been sued for an alleged slander by his wife. The court held:
“In Kansas, the husband is not liable for the slanderous words spoken by his wife, when he is not present and in which he in no manner participates.”
We think it clear the case is not in point.
With respect to their property and the custody of their children our statutes have given married women substantially the same rights as the husbands. (See, G. S. 1949, 23-201 to 23-207 and the cases there annotated.) Much has been written upon the question of the liability in tort of one spouse to the other. We have no occasion here to write a thesis upon the question. Those interested may find such a treatise in 27 Am. Jur. 191 to 198 and in 41 C. J. S. 877 to 885. Cases bearing upon the question are collected in the annotations in 6 A. L. R. 1038; 29 A. L. R. 1482; 33 A. L. R. 1406; 44 A. L. R. 794; 48 A. L. R. 293; 89 A. L. R. 118; 160 A. L. R. 1406; 2 A. L. R. 2d 632; 19 A. L. R. 2d 1001.
There is no case in our reports in which one spouse has been permitted to collect damages in an action for tort against the other spouse. In the cases cited in the treatises and annotations above mentioned such recovery is almost uniformly denied unless there is a specific statute of the state which authorizes such a recovery. Only a few states have such a statute. Many states have statutes similar' to our own and in those states such recovery has been denied in the following cases:
Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 54 L. Ed. 1180;
Yellow Cab Co. v. Dreslin, 181 F. 2d 626, 19 A. L. R. 2d 1001;
Faris v. Hope, 298 Fed. 727;
Libby v. Berry, 74 Me. 286;
Callow v. Thomas, 322 Mass. 550, 78 N. E. 2d 637, 2 A. L. R. 2nd 632;
Strom v. Strom, 98 Minn. 427, 107 N. W. 1047;
Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382;
Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S. W. 2d 645;
Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287;
Sargeant v. Fedor, 3 N. J. M. 832, 130 Atl. 207;
Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628;
Wilson v. Brown (Tex. Civ. App.), 154 S. W. 322;
Gowin v. Gowin (Tex. Civ. App.), 264 S. W. 529;
Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629;
Fehr v. General Acc. F. & L. Assur. Corp., 246 Wis. 228, 16 N. W. 2nd 787.
The doctrine was followed in the following cases involving automobile accidents:
Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25;
Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022;
Scales v. Scales, 168 Miss. 439, 151 So. 551;
Von Laszewski v. Von Laszewski, 99 N. J. Eq. 25, 133 Atl. 179;
Leonardi v. Leonardi, 21 Ohio App. 110, 153 N. E. 93.
This list is not intended to be complete.
A few cases to the contrary may be found, but the reasoning in those cases has been criticized in many of the cases above cited. We do not care to follow them. The reason normally given by the courts for such refusal is that it would be contrary to public policy and tend to disrupt the marital relation. We think the reasoning sound.
No question is presented here about our guest statute (G. S. 1949, 8-122b).
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to quiet the title in plaintiffs in a described 1,520 acres of land in Rooks county. A trial by the court resulted in judgment for plaintiffs and the defendant, R. Q. Scott, trustee, alone appeals.
The case was submitted to the trial court upon an agreed statement of facts, which by reference embodied a proceeding in the probate court and the files of two former cases, Nos. 7317 and 7466, in the district court of Rooks county. The real property here involved formerly was owned by George Veverka, a resident of Rooks county, who, on August 7, 1933, being then in good health and of sound and disposing mind and memory, duly executed his last will and testament in which he first directed that all his just debts and funeral expenses be paid. Second, he gave to his wife, Francis Veverka, the sum of $4,000, “as was provided for in a prenuptial agreement existing between us.” Third, with respect to all the residue of his property, real, personal and mixed of which he should die seized, he provided that his personal property should be converted into money, and after carrying out the previous provisions, that the remainder be invested in sound government securities; and further provided:
“I direct that the same personal property and the said land shall be held in trust for a period of twenty-five years after the date of my decease; during which time my real estate shall not be sold or encumbered in any way; and my personal property shall not be used except to pay taxes and other charges of my land and tire expense of administration. It is understood that I wish my land held intact, as far as possible, during this twenty-five year period aforesaid, to be disposed of at the end of that time as hereinafter provided.
“Fourth: After my land has been cleared of mortgage, and my personal property invested as provided, I direct that any income therefrom be divided into equal shares, as follows: to John Veverka, Anna Eaton, Frank Veverka, Lizzie Bray, Bessie Bray, Joe Veverka, Ella Smith, Mary Stice and William Veverka, my living children, and one more share to the children then living of my deceased son, George Veverka, making ten shares in all. The children of George Veverka now living are: Mabel McCauley, Morris Veverka, Freeda Geyer, Claris French and Florence Canning. I direct this division of income to be made annually, after all taxes and upkeep of the land has been provided for. I direct that if any of my children shall die before my decease without living children or grandchildren that such share shall be divided among the remaining shares, but if any child has surviving child or grandchild that such shall receive the parents share; and the same rule as to the children of my deceased son shall prevail. I wish that in all matters in this Will that the share given each of my children shall go to him or her, if living, and if not then to his children, who shall share and share alike, and if any of the grandchildren shall be deceased, but leave a child or children, that each child or children shall share the benefits given the deceased parent. I desire that no one not of my blood be entitled to benefit under this part of my Will.
“Fifth: In addition to the ordinary income, as above provided, I expressly authorize my executor to lease any or all of my land for oil or mineral development, at the usual terms existing in Rooks County for similar leases, and that tire rentals shall be included in the incomes as above provided for; but that in the event that there shall be oil or mineral production on any of said land, during the twenty-five year period aforesaid, I direct that one-eleventh of the same shall be set aside and sent to the proper city officials of the town of my birth, namely — Lhoozlce, in Wisavitz, in Morava (originally part of Austria-Hungary) there to be used for the care of the poor of said city, as may seem best. I expressly declare this to be one of my main wishes, and I authorize the executors of my will to see that this portion of any oil or mineral income from my land shall be used for the good of the poor of my birth city, even should it be impossible for the city itself to accept the gift or devise or to lawfully use it. The remaining ten-elevenths of such income from oil or mineral production I desire to go (annually) as above provided to my children and grandchildren.
“Sixth: At the end of twenty-five years I direct that all of my real estate and investments in said estate shall be sold, and the money divided in equal shares among my children, the same as provided for ordinary income, descendants of any deceased child stepping into the shares of the deceased parent as above provided.
“I nominate William Veverka and Charles Smith (Son-in-Law) as executors of my Last Will and Testament.”
This will was executed by George Veverka and duly witnessed. His wife gave her written consent to the will and agreed to accept the sum given to her therein in lieu of her property rights under the law, and this was duly witnessed. George Veverka died October 3,1938. His will was duly admitted to probate on October 13, 1938, and the executors nominated therein were duly appointed and qualified.
On February 23, 1939, the executors of the will filed an action, case No. 7317, in the district court of Rooks county for the purpose of having the will construed. The defendants named therein were the heirs at law and the devisees and legatees named in the will, all of whom were properly served with summons, with the exception that the city of Lhoczke, in Wisavitz, in Morava, mentioned in the fifth paragraph of the will, was not named as a defendant. There was no attempt at service of summons upon it, its officials or inhabitants,. and no one appeared for any of them. The court examined and approved the service of summons upon the defend ants and appointed a guardian ad litem for the minor defendants, who filed an appropriate answer under our statute (G. S. 1949, 60-408). The case came on for trial by the court on April 12, 1939. The court found the adult defendants to be in default and
“. . . having read the pleadings and heard the evidence and statements of counsel, . . .” found “that the third, fourth, fifth and sixth paragraphs of said Will purport to keep intact, for a period of twenty-five years, all of the rest and residue of said Testator’s property, both real and personal, by means of a trust; that the sixth paragraph of said Will purports to vest said trust property in a class to be determined at the end of said twenty-five year period; the Court further finds that said trust violates the rule against perpetuities, and is therefore void.”
The court further found:
“. . . that by reason of said trust being void as aforesaid, said Testator died intestate as to all property purported to be devised under the third, fourth, fifth and sixth paragraphs of said Will, and that said property vested according to the law of descents and distributions in the heirs of said deceased, except as to his widow.”
who had accepted the bequest made to her in the second clause of the will, in conformity with the prenuptial contract. The court further found:
“. . . that under, the law of descents and distributions, the property purported to be devised under the third, fourth, fifth and sixth paragraphs of said Will, vested in the following named heirs at law of said Testator, in the proportions respectively set forth after their names, to-wit: John Veverka, 1/10; Anna Eaton, 1/10; Frank Veverka, 1/10; Lizzie Bray, 1/10; Joe Veverka, 1/10; Ella Smith, 1/10; Mary Stice, 1/10; William Veverka, 1/10; Mable Mc-Cauley, 1/50; Morris Veverka, 1/50; Freda Geyer, 1/50; Clarice French, 1/50; Florence Canning, 1/50; Goldie Lowry, 1/30; Vera Bray, 1/30; Perry Bray, Jr., 1/30, said above named persons being the sole and only heirs at law of said Testator, at the time of his death.”
The judgment and decree were in harmony with these findings.
The probate court was duly advised of this decree and on April 22, 1939, appointed William Veverka and Charles Smith as administrators of the intestate’s property. The administration having been completed the persons appointed, first as executors and later as administrators, on March 28, 1940, filed their final accounts. This was in two parts. The first pertained to the time when the executors were acting as such only and was a petition of the executors for final settlement, accounting allowance of compensation and expenses, and order of distribution. This recited that the executors had been duly appointed as such on October 13, 1938, set forth an accounting of moneys collected and disbursed, in which they charged themselves with money on deposit in the bank, from the proceeds from the sale of wheat and from the sale of other property and from rents, and asked credit for payment to Francis Veverka, under the prenuptial agreement in full of $4,000, for the payment of medical and funeral expenses of the deceased, and other items. It described the real property owned by the decedent at the time of his death, being the same as described in the petition in this action, and alleged that by virtue of the judgment of the district court of Rooks county, rendered on April 12, 1939, in case No. 7317, the testator died intestate as to all the real estate. On March 28, 1940, the court made an order which recited the fact that ,the petition of the executors for final settlement, etc., had been filed, and ordered that the hearing of the petition be set for April 22, 1940, at 1:00 o’clock p. m., and further ordered that notice of the hearing be given as provided by section 185 of the probate code of the state of Kansas (now G. S. 1949, 59-2209). The notice given in part reads:
“Notice of Final Settlement. In the Probate Court of Rooks County, Kansas. In the Matter of the Estate of George Veverka, Deceased. State of Kansas to all credits and other persons interested in said estate and more particularly to” naming all the heirs of the decedent.
The notice contained all other matters required by the section of the statute last above cited and was even more explicit than the form of the notice outlined by G. S. 1949, 59-2210. The affidavit of the publishers was filed April 22, 1940, showing that the notice had been published for three consecutive weeks commencing with the issue of March 28,1940.
The other account covers the time since the appointment of the administrators. In this the administrators charged themselves with the cash received from the sale of personal property and took credit for expense of the sale of the personal property and for the partial distribution made to each of the heirs of the decedent other than his widow. The petition of the administrators for final settlement and accounting, allowance of compensation and expenses and order of distribution, among other things, recited:
“. . . that they were appointed such Administrators as aforesaid, by-reason of a judgment rendered in Case No. 7317, in the District Court of Rooks County, Kansas, on the 12th day of April, 1939, wherein it was adjudged and decreed by said Court, that the said George Veverka, deceased, died intestate as to all property purported to be devised under the third, fourth, fifth and sixth paragraphs of his said Will, and a finding by said Court that all property belonging to .the said George Veverka, deceased, at the time of his death not devised by the first two paragraphs of his Will, vested according to tire law of descents and distributions in the heirs of said deceased, except ns to his widow, Francis Veverka.” ,
It further alleged that the attached account of the moneys which came into their hands and was distributed was a true and correct account of the administration. It set out the names of all the heirs at law of the decedent, alleged that Francis Veverka had already received her share of the property, and made appropriate allegations as to their compensation and that of their attorney. It further alleged that decedent at the time of his death was the owner of certain real estate, which was described, being the same real estate here involved, and alleged the court should determine the descent of said real estate and all other property now in the hands of the administrators, and that the property should be assigned by the court to the persons entitled thereto. On March 28, 1940, the court made an order for the hearing of the petition for the final settlement of the account, the allowance of compensation and expenses, and order for distribution of the estate of George Veverka, deceased, and set as the time for the hearing of the petition April 22, 1940, at 1:30 o’clock p. m., and further ordered that notice of the hearing be given as provided by section 185 of the probate code. The notice given in part reads:
“Notice of Final Settlement. In the Probate Court of Rooks County, Kansas. In the Matter of the Estate of George Veverka, deceased. State of Kansas to all creditors and other persons interested in said estate and more particularly to” (naming each of the heirs at law of the decedent), and followed with all other matters required by the statute last above mentioned.
The proof of the publication filed April 22, 1940, shows that the notice was published for three consecutive weeks, beginning with the issue of March 28, 1940. The attorney for the petitioner filed an affidavit that a copy of the notice for hearing had been mailed to each of the heirs of the decedent, giving their respective names and addresses.
The probate court in its journal entry of final settlement found that due and legal notice of the hearing upon the report had been given according to section 185 of the probate code, and that notice, together with the proof thereof, was on file with the court. It examined the account filed by the executors and the account filed by the administrators and approved both of them. The court further found that by virtue of a judgment rendered in the district court on the 12th day of April, 1939, in case No. 7317, wherein it was adjudged and decreed by the court that George Veverka, deceased, died intestate as to all property purported to be devised under the third, fourth, fifth and sixth paragraphs of the will, and that said property vested according to the law of descents and distribution to the heirs of the deceased, except his widow, and that by virtue of the judgment William Veverka and Charles Smith, on April 22, 1939, were duly appointed as administrators of the estate of George Veverka, deceased, and that all the assets remaining to be administered upon in their hands as executors and belonging to the estate were turned over to the administrators, and that no assets or money remained in the hands of the executors with which to pay costs of administration, executors and attorney’s fee in connection with the probate of the will. The court then took up the report of the administrators and found that due and legal notice of the hearing had been given by the administrators according to section 185 of the probate code, and that proof thereof was on file with the court. The court then examined the account of the administrators and found that the estate had been fully administered, that final settlement should be made, and the executors and administrators should be discharged. The court further found that the taxes imposed by the inheritance tax laws of Kansas had been paid or settled as provided by law; that all claims presented against the estate, both to the executors and administrators, had been paid; that the personal property belonging to the estate had been sold and disposed of; that the accounts of the executors and the administrators were in all respects regular and should be approved.
“The Court further finds that at the time of the death of the said George Veverka, he was the owner of the following described real estate, to-wit” (describing the same property described in the petition in this action) and “That by virtue of a judgment of the District Court of Rooks County, Kansas, rendered on the 12th day of April, 1939, in Case No. 7317, as hereinbefore set forth, the said George Veverka, deceased, died intestate as to all of said real estate.
“The Court further finds that the following named persons were the sole and only heirs at law of the said George Veverka, deceased, and they should inherit said property in the proportions set opposite their names.” (Then follows tire list as later stated.)
The court further found that the widow, Francis Veverka, was precluded from inheriting any of the real estate by reason of the fact that she had accepted the devise made her under the second paragraph of the will, in conformity with the prenuptial contract between the parties.
“It is further adjudged and decreed by the Court, that the said George Veverka, deceased, died intestate as to all of the above described real estate, and all property purported to be conveyed under the third, fourth, fifth and sixth paragraphs of his said Will; that the said Francis Veverka, widow of said testator, who was formerly Francis Kucera, is precluded from inheriting any of the property owned by the said decedent at the time of his death.
“It is further decreed by the Court that the above described real estate, and all other real estate within the Stale, and owned by the said George Veverka, deceased, at the time of his death, subject to any lawful disposition thereof heretofore made, be, and the same is hereby assigned to and vested in the following named persons, in the proportions or parts set opposite their names, to-wit: John Veverka, 1/10 interest; Anna Eaton, 1/10 interest; Frank Veverka, 1/10 interest; Lizzie Bray, 1/10 interest; Joe Veverka, 1/10 interest; Ella Smith, 1/10 interest; William Veverka, 1/10 interest; Mary Stice, 1/10 interest; Mable McCauley, 1/50 interest; Morris Veverka, 1/50 interest; Freda Geyer, 1/50 interest; Florence Canning, 1/50 interest; Clarice French, 1/50 interest; Goldie Lowry, 1/30 interest; Vera Bray Combs, 1/30 interest; Perry Bray Jr., 1 '30 interest.
“It is further ordered that after the payment of the sums hereinbefore allowed, that said Administrators file with said Court, the cancelled checks as receipts for said sums, and that they file a supplemental report and accounting of their proceedings hereunder, and that upon the filing of said receipts and said report, that they be discharged as Executors and Administrators of said estate, as provided by law.”
On May 2, 1940, the receipts were filed with the court, as were directed, together with a supplemental account, all of which were approved, and the court made an order of final discharge of the executors and administrators.
On May 11, 1940, in case No. 7466, in the district court of Rooks county, entitled "In re: Last Will and Testament of George Veverka, Deceased,” the Aricada Oil Company, Inc., filed an application for the appointment of a trustee. It was an ex parte application, that is, no other person was made a party to the action. This application alleged that George Veverka died testate October 3, 1938, owning described real property the same as is described in this case; that his will was duly admitted to probate October 13, 1938, and executors were appointed; that on February 23, 1939, the executors filed an action, No. 7317, in the district court for the purpose of construing the will; that on April 12, 1939, the court rendered its decree; that the third, fourth, fifth and sixth paragraphs of the will are null and void and that the testator died intestate as to the property covered thereby; that on April 22, 1939, the former executors were appointed administrators and duly qualified, and later they completed the administration of the estate not decreed void by the court in case No. 7317; that on May 2, 1940, after proper advertising, the estate was fully closed in the probate court and the executors and administrators discharged. It further alleged that the city of Lhoczke, in Wisavitz, in Morava, none of its officers, nor anyone purporting to represent the parties, or the beneficiaries of the one-eleventh interest in the oil and minerals in the land of the testator, to be paid as provided in paragraph five of the will, were made parties in case No. 7317, and that the judgment rendered in case No. 7317 is void insofar as the trust created in paragraph five of the will pertained to the one-eleventh of the oil or minerals from the testator’s land is concerned; that the applicant owns oil and gas leases covering a described portion of the land which belonged to the testator, which had been executed by all the heirs of George Veverka, but that applicant is unable to get the lease developed by parties able to develop the same unless they are properly executed by a trustee appointed by the court to that part of the will pertaining to the one-eleventh of the production of oil or minerals in the land; that appellant has been informed by marketing agents for the production of oil and gas that the oil from the leases will not be marketable until a trustee is so appointed and the leases executed by the trustee and approved by this court; that applicant is interested in acquiring oil and gas leases on other lands which belonged to George Veverka at his death; that the leases will be in the same condition as those described herein unless a trustee is appointed by the court; that William Veverka and Charles Smith, named in the will of George Veverka as executors, refuse to be appointed or to qualify as trustees of the will upon the ground that the provisions in paragraph five of the will, previously stated, are null and void, and that a suitable person should be appointed trustee of the will of George Veverka for the purpose of carrying out the provisions of paragraph five pertaining to the leasing and payment of one-eleventh of the production of oil and minerals on any of the land. The prayer was that such a trustee be appointed. Without notice to anyone, and with no one appearing but the attorney for the applicant, and after the consideration of the application, the court found that William Veverka and Charles Smith, named as executors in the will, refused to be appointed trustees and refused to qualify for appoint ment; that they denied that any valid trust was contained in the will; that it was necessary that a trustee be appointed for that portion of the will pertaining to the leasing for oil and mineral developments on the payment of one-eleventh of the production of the oil and minerals, as provided in the fifth paragraph of the will, including all parts of the will referred to in that paragraph, or supporting the same and necessary for carrying out the terms of the trust created in the paragraph. The court made, an order appointing R. Q. Scott as such trustee, to become effective upon his taking the oath and giving bond in the sum of $1,000. The oath and bond of the trustee were filed on the same date and approved by the court. On the same date R. Q. Scott made written application for authority to execute, as trustee, the oil and gas leases mentioned in the application for the appointment of a trustee. The application for the trustee to execute the leases was approved by the court and an order made directing the trustee to execute such leases. Also on the same date the court, being advised that the trustee had executed the leases, made an order approving such execution by the trustee. Thereafter and on February 27, 1941, R. Q. Scott, trustee, presented his application to the court for an order approving his execution of an oil and gas lease upon a described eighty-acre tract of the land in question to Ira Scott, and this application was approved by the court on the same day it was filed. Also, on February 27, R. Q. Scott, trustee, presented an application to the court for its approval of his execution of an oil and gas lease on a described 240 acres of the land in question to one Ira Scott, and the approval requested was granted by the court. Thereafter and on April 28, 1941, R. Q. Scott, trustee, presented to the court an application to approve his execution of two leases, each covering a described 160 acres of the land here in question, to one Ira Scott, and the court approved the action of the trustee.
The court’s records do not show anything further to have been done until this action was filed on October 22,1946.
It is stipulated that the plaintiffs in this action are heirs at law of George Veverka, deceased, or purchasers of shares of the property from the heirs at law of the decedent. The defendants may be classified in three classes: First, one of the poor of the city of Lhoczke, the city itself, and its officers; second, R. Q. Scott, trustee, and third, several persons interested in oil and gas leases on the property. The action was to quiet title to the real property in plaintiffs and against all of the defendants. Service of summons by publication was had upon all nonresident defendants, including the city of Lhoczke, its officials, and the representatives of the poor residing there. Defendants, claiming an interest under oil and gas leases, filed an answer in which they alleged they were the owners of certain oil and gas leases, copies of which were set out, which had been executed by all the heirs at law of George Veverka. The leases had not been executed by R. Q. Scott, trustee. It was alleged the leases had been executed by all the parties who had any interest in the land; that the fifth paragraph of the will of George Veverka was void as being in violation of our statute (G. S. 1949, 59-602), and that in no event did the section confer upon one of the poor of the city of Lhoczke, the city, or its officers, or R. Q. Scott, trustee, any vested interest in real property, and that the most any of them had was a share of oil or other minerals after they had been removed from the property. The issues raised by this answer were first tried by the court, and the court held that in no event did the provisions of the will of George Veverka, deceased, confer upon or vest in the defendant, John Doe, one of the poor of the city of Lhoczke, or the city, or its officers, or their successors, or R. Q. Scott, trustee, under the fifth paragraph of the will, any right, title or interest in or to the land owned by George Veverka at the time of his death, or in the minerals thereunder. No appeal was taken from that judgment. R. Q. Scott, trustee, filed an answer in which he admitted that plaintiffs are in possession of the property, stated the history of the death of George Veverka, the probate of his will, the action brought by the executors in the district court, No. 7317, for the purpose of construing the will, the judgment in that action, and the fact that the former executors were named as administrators and had closed the administration of the estate. With respect to the action to construe the will it was alleged that the city of Lhoczke, and none of its officials, or the poor thereof, were made parties in the case to construe the will, No. 7317, no one appeared for them in that case, and that the judgment rendered therein was void or not effectual insofar as the trust created by paragraph five of the will is concerned. It was further alleged that paragraph five of the will creates a public charitable trust, that it is valid, and should be carried out according to its terms. It further alleged the appointment of a trustee on May 11, 1940, in case No. 7466. The prayer was for a decree that paragraph five of the will of George Veverka, deceased, created and constituted a valid public charitable trust; that his appointment as trustee be confirmed and approved; that the court make such further orders or decrees as are necessary to carry out the terms of the trust, and that the defendant be granted such other and further relief as is just and equitable, and that no costs should be assessed to him. Upon the hearing the court quieted title in plaintiff against all of the defendants and held:
“. . . that any devise or bequest under and by virtue of said fifth paragraph of the Last Will and Testament of George Veverka, deceased, is void, under section 59-602” of the General Statutes of 1949, and “such bequest or devise under said paragraph is barred by said Statute; that all of such claims made by said Defendants, or any of them, are void and wrongful, and a cloud upon Plaintiffs’ title to said real estate and their possession thereof; that Plaintiffs’ title to said real estate should be quieted in them, and against said defendants.”
The court’s decree was in harmony with that holding. From this judgment R. Q. Scott, trustee, has appealed and presents as the sole question for our review whether or not the bequest in question is void by reason of G. S. 1949, 59-602, which, so far as here pertinent, reads:
“Any devise of real estate located in this state, and any bequest of any personal property by a resident of this state, without regard to the time when the will containing such devise or bequest shall have been made, to any foreign country, subdivision thereof, or city, body politic, or corporation, located therein or existing under the laws thereof, or in trust or otherwise to any trustee or agent thereof, except devises and bequests to institutions created and existing exclusively for religious, educational, or charitable purposes, is hereby prohibited. Any such devise or bequest shall be void.”
Counsel for appellant argues that the will in question was admitted to probate before this section of the statute was enacted, therefore it has no application. It is true that the section is a part of the Kansas probate code enacted by the legislature- in 1939 (chapter 180, Laws 1939), which was specifically made effective on July 1, 1939. That fact, however, is not conclusive upon the question as to whether the statute is applicable to the gift attempted to be made to the city of Lhoczke by the fifth paragraph of the will. Counsel cite 59 C. J. 1159; 50 Am. Jur. 493; First Nat’l Bank v. Gray, 151 Kan. 558, 99 P. 2d 771, and authorities cited therein, including International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 P. 2d 311, all to the effect that statutes are presumed to operate prospectively and not as having retroactive effect upon vested rights under existing laws. That rule of law may be con ceded. The difficulty of applying it here is the fifth paragraph of the will in question which gave no vested right to the city of Lhoczke, or its officials or inhabitants. The right attempted to be given to them was contingent. It was one that might never happen. It did not pertain to any then existing property, but only to what might possibly have an existence in the future, but with no certainty that it ever would exist. When oil was discovered on the land in 1946 the statute was in force.
The fifth paragraph of the will was held void by the district court in case No. 7317. Counsel for appellant contend that judgment was void as to the city of Lhoczke, its officers and inhabitants, for the reason that they were not parties to that action. That contention, which no doubt would be good in many cases, we think is not important here. The provision in question in the fifth paragraph of the will is only a part of the scheme of the testator set out in the third, fourth, fifth and sixth paragraphs of the will, which in short provide that the executors should keep the real and personal property together, manage it, and pay the taxes upon it, and distribute rents and income, including that which might result from production of oil or minerals. The whole scheme fell because the testator placed a ■ time for the real and personal property to be held together to the term of twenty-five years, which was void as against the rule of perpetuities. (Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682; Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 333, 334, 211 Pac. 146; Malmquist v. Detar, 123 Kan. 384, 255 Pac. 42; Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200.) The result was that the entire scheme fell, with the result that the land and personal property passed to the testator s heirs at law. This result is necessary whether decided in case No. 7317 or in this case. The report of the administrators to the probate court shows that they had a sale and sold the personal property and distributed the proceeds among the heirs, and that they ceased to exercise any control over the real property. It passed directly to the heirs. The administration of the estate of George Veverka was commenced in the probate court in October, 1938, under our statutes then in force pertaining to decedents’ estates (chapter 22, G. S. 1935). The estate was closed under our Kansas probate code (chapter 180, Laws of 1939, now, as slightly amended in ways not pertinent here, chapter 59, G. S. 1949). The closing of the estate under the Kansas probate code was specifically authorized by G. S. 1949, 59-2602. The notice given in the probate court for the closing of the estate as executors, and also notice as to the closing of the estate as administrators, was given in harmony with section 185 of the Kansas probate code, now G. S. 1949, 59-2209.
Appellant points out that the notice of publication did not contain the name of the city of Lhoczke, its officers or inhabitants and contend it is not good as to them for that reason. The point is not well taken. The form of the notice was provided in section 186 of the Kansas probate code (Chap. 180, Laws 1939), in force when those notices were given, and reads:
“Notice of any hearing, if such is required, shall be in substantially the following form:
“State of Kansas, - County, ss. In the probate court of said county and state. In the matter of the estate of (name of decedent or person under disability, with a specific designation which it is). Notice of Hearing. The state of Kansas to (names of persons to whom notice is given), and all other persons concerned: . . .”
This was slightly changed by section 8 of chapter 284, Laws of 1941, and now appears as G. S. 1949, 59-2210. The notice given in the probate court, previously quoted herein, was addressed: “to all creditors and other persons interested in said estate and more particularly to,” (naming the heirs at law of the decedent).
With respect to persons in foreign countries interested in an estate our statute (G. S. 1949, 59-1705) reads:
“When it appears in the administration of an estate of a decedent or a ward that subjects, citizens or nationals of any foreign country are or may be interested as heirs, devisees, legatees, or otherwise, the court before whom the matter is pending shall give notice by mail to the consular representative of such country for this state of the pendency of such matter and the probable interest of such foreign citizens, subjects, and nationals therein, if such consular representative has filed his name and address in such court. The failure to give such notice shall not affect the validity of any proceeding.”
There is nothing in this record tending to show that the consular representative of Morava had filed his name and address in the probate court of Rooks county. Even if he had done so and the court had failed to give the notice by mail, as provided by that statute, it would not affect the validity of the proceeding. Aside from persons named the notice is to “all other persons concerned,” which includes the consular representative of Morava and the city of Lhoczke, its officials and inhabitants. It also includes the Arkada Oil Company, Inc., if it had any interest in the estate respecting the appointment of a trustee.
As previously stated herein, after the notices for final settlement were given by the executors and administrators of the estate, and at the time stated therein, the court had a hearing in which, among other things, the court found what real property was owned by the decedent at the time of his death, who were the heirs at law of the decedent entitled to receive it, and assigned to each of them the specific fractional portion such party was entitled to receive.
Our statute (G. S. 1949, 59-2213) provides: . . The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by section 605 (G. S. 1949, 60-3016) of the code of civil procedure.” No application was made by anyone to modify or set aside the decree of the court under this section.
Also, our statute (G. S. 1949, 59-2252) in part reads:
“A party against whom a judgment or decree has been rendered in proceedings to determine the persons entitled to the real property of a decedent, without other service than publication in a newspaper, may at any time within one year after the date of the judgment or decree have the same opened or set aside and be let in to defend. . . .”
No proceeding was had by anyone under this section with respect to the final judgment and decree of the probate court. Our statute (G. S. 1949, chapter 59, article 24) provides for appeals to the district court, and from there to the supreme court, from orders or decrees or judgments of the probate court. No appeal was taken under any of these provisions of the statute. The result is that the finding and decree of the probate court became final and binding upon everyone who might have claimed some interest in the property assigned to the heirs at law of the decedent. (Bindley v. Mitchell, 170 Kan. 653, 228 P. 2d 689; In re Estate of Bump, 171 Kan. 442, 233 P. 2d 478, and In re Estate of Bowman, 172 Kan. 17, 238 P. 2d 486, and the authorities cited in those cases.)
Counsel for appellant contend that the wording of the fifth paragraph of the will is not obnoxious to the statute. They contend the will first makes the city officials trustees of the fund for the care of the poor of the city, and in the alternative makes the executors of the will such trustees. They contend the statute covers a gift in trust to trustees or agents for the purpose mentioned. The stat ute (G. S. 1949, 59-602) is ample to cover a situation suggested by counsel for appellant. That the statute was designed to be in force is made clear by our opinion in the case of In re Estate of Weeks, 154 Kan. 103, 114 P. 2d 857; where it was sought, without effect, to be avoided by the doctrine of cy pres.
The result is that the final decree of the probate court assigning to the heirs of George Veverka the real property described in the petition in this case vested title in them free from any claim of the city of Lhoczke, its officers and inhabitants.
The ex parte application of the Arkada Oil Company, Inc., for the appointment of a trustee, and the ruling of the court made thereon, perhaps were void. (See 65 C. J. 599.) But we shall not determine that point since it has not been argued. We agree with the court’s judgment upon the first issue tried in this case that in no event did the provisions of the will of George Veverka, deceased, confer upon or vest in the defendant, John Doe, one of the poor of the city of Lhoczke, or the city or its officers, or their successors, or R. Q. Scott, trustee, under the fifth paragraph of the will, any right, title or interest in or to the land owned by George Veverka at the time of his death, and that they are neither necessary nor proper parties to an oil and gas mining lease covering land owned by George Veverka at the time of his death.
The judgment of the trial court should be affirmed and the receivership should be closed promptly.- The funds in the hands of the receiver should be returned to the clerk of the court and disbursed to plaintiffs and the receiver discharged.
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for the loss and damage to a star sapphire ring caused by fire. Plaintiff insured prevailed in the court below and defendant company has appealed.
For convenience, the parties will be referred to as the insured and the company.
Roth parties state the sole question for determination to be:
“Is the loss resulting from damage to jewelry, by a fire intentionally kindled in and confined to a place where fire was intended to be, insured against under the terms of the fire insurance policy in question?”
The facts, which are not in dispute, are as follows:
On an occasion while the policy in question was in force the wife of insured was carrying her ring wrapped in a handkerchief in her purse. Upon arriving at her home she placed the handkerchief, together with some paper cleansing tissues (Kleenex), on the dresser in her bedroom. Later her maid, in cleaning the room, inadvertently picked up the handkerchief containing the ring, together with the cleansing tissues, and threw them into a wastebasket. Still later, another servant emptied the contents of the wastebasket, along with other trash, into a trash burner at the rear of the premises and proceeded to burn the trash so deposited. The trash burner was intended for that purpose, the fire was intentionally lighted by the servant, and was confined to the trash burner. About a week later the ring was found in the trash burner. It had been damaged to the extent of $900.
The policy, a standard form, insured household goods and personal property, usual or incidental to the occupancy of the premises as a dwelling, belonging to insured or a member of his family while contained on the premises,
“. . . against all direct loss or damage by fire, except as hereinafter provided, . .
in an amount not exceeding $2,000. The parties agree that the “exceptions” contained in the policy are immaterial to the issues in this case.
The insured also carried a “floater policy” in another company (not a party to this action) by the terms o£ which the ring was insured to the extent of $250. The company issuing the “floater policy” offered to pay that amount to insured, but as of the time of trial of this action such offer had not been accepted.
In the court below the company offered no evidence and elected to stand on its demurrer to insured’s evidence, which established the facts as hereinbefore related. Judgment was rendered in favor of insured in the amount of $650 (being the amount of the loss less the “floater policy” coverage), and for attorney fees in the amount of $300, to be collected as costs.
The company brings the case here, specifying as error the orders of the lower court in overruling its demurrer to the evidence and in entering the judgment in favor of insured.
The company contends here, as it did in the court below, that the quoted insuring clause of the policy,
“against all direct loss or damage by fire”
covers only loss or damage resulting from a “hostile” fire as distinguished from a “friendly” fire; that here, the fire being intentionally lighted in and confined to a place or receptacle where it was intended to be, was not a hostile fire within the usual and well-established meaning of the term and therefore no recovery can be had.
The insured argues that he purchased and paid for fire insurance —not just for fire insurance' to cover loss resulting only from so-called “hostile” fires; that the direct loss and damage to the ring by fire is undisputed; that the company would have the court write into the policy an unauthorized and unreasonable restriction; that there is no ambiguity in the terms of the policy and therefore it should be enforced according to its literal terms; and that even though there were some uncertainty as to its meaning the court is bound to construe the policy strictly against the company and favorably to the insured. (Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310; Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.)
Although courts of other jurisdictions and text writers on the subject have had occasion to distinguish between so-called “friendly” and “hostile” fires in connection with loss or damage due to fire, it appears that the precise question before us is one of first impression in this state.
In 29 Am. Jur., Insurance, § 1016, pp. 767, 768, it is said:
“A distinction is usually drawn by the courts between a friendly and a hostile fire, and it is held that if fire is employed as an agent, for the ordinary purposes of heating the insured building, for the purposes of manufacture, or as an instrument of art, the insurer is not liable for the consequences thereof, so long as the fire itself is confined within the limits of the agencies employed.” (See also text and notes under same section number in 1951 Cumulative Supplement.)
In 45 C. J. S., Insurance, § 809, pp. 861, 862, the rule is stated:
“Recovery usually may be had for loss or damage of whatever character, which proximately resulted from an actual hostile fire. The liability of an insurance company under a policy of fire insurance ordinarily is measured by the terms of the policy. Although it has been held that an insurance against loss or damage by fire is broad enough to include all fires, however originating, and all damages therefrom of whatever' character, as a general rule, to constitute a ‘direct loss or damage by fire,’ within the usual terms of a policy, there must be an actual fire in the proper sense of that term, from which the loss or damage results, . . .
“While there seems to be authority to the contrary, it must be a hostile fire, that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element, . . .
“Where the fire is a friendly one, . . . it is not a fire within the usual terms of a policy, and recovery cannot be had for loss or damage caused thereby, . . .” (See also 26 C. J., Fire Insurance, §§ 429, 430, pp. 340, 341.)
The following general rule is found in Couch on Insurance, vol. 5, § 1201:
“The questions of what constitutes a loss by fire, and what is fire, have given rise in numerous cases to exhaustive discussions, . . . What is ‘fire’ is a question not clearly settled so as to be applicable to all cases. ... It should be given that construction which conforms to the popular, ordinary sense in which it is used. . . . One test which runs through a great many cases is whether the fire is a “hostile,’ or a ‘friendly,’ one, the general rule being that fire policies extend protection only against loss from “hostile’ fires and do not cover loss from so-called ‘friendly’ fires, such as those usually employed for economic or scientific purposes, as fight, heat, etc.; in fact, that to constitute a “hostile’ fire, it must be one which becomes uncontrollable, or breaks out from' where it was intended to be so as to become a hostile element, as distinguished from a friendly one, such as is employed for ordinary purposes, and is confined within its usual limits.”
To the same effect see Appleman, Insurance Law and Practice, vol. 5, § 3082, where it is stated:
“The distinction most commonly made by courts in considering contracts of fire insurance is that drawn between “hostile’ and ‘friendly’ fires. If the fire burns in a place where it (is) intended to bum, although damages may have resulted where none were intended, the fire is a friendly fire, and the insurer is not liable for damages flowing therefrom. A friendly fire refers to one which remains confined within the place intended, and refers to a fire in a furnace, stove, or other usual place. A hostile fire, on the other hand, means one not confined to the place intended, or one not intentionally started; and it is generally considered to refer to such a fire which, if it had pursued its natural course, would have resulted in a total or partial destruction of the insured property. When a friendly fire escapes from the place it ought to he to some place where it ought not to be, causing damage, it becomes a hostile fire for which the insurer is liable.
“In order to recover for damages sustained, the insured must show that the fire was a hostile, rather than a friendly, fire. . . .
“The majority of courts have denied recovery for loss or damage to jewelry owned by the insured where such articles have been placed for safekeeping in a stove or thrown inadvertently into a furnace. The reason is, of course, that such a fire is considered a friendly fire, confined to its place of inception, and the primary cause of loss is the negligence of the insured or his servants. Louisiana alone seems to permit recovery in such instance.”
An examination of the decisions discloses that the question whether a fire is “friendly” as distinguished from “hostile” has arisen under a great variety of circumstances, such as where damage resulted from smoke, soot, scorching, or overheating, where property was actually consumed or damaged by flame itself, and in those instances where fire, originally confined to a place normally intended for it to be, escaped from such place, thereby taking on the characteristics of a “hostile” fire.
The case of McGraw v. Insurance Co., 93 Kan. 482, 144 Pac. 821, Ann. Cas. 1916 D, 227, appears to be the only decision of this court mentioning the subject of friendly and hostile fires. In that case a steam boiler was damaged by the application of fire which was excessive in view of an insufficient supply of water in the boiler. While the decision turned on a question of sufficiency of proof concerning whether the damage was the result of negligence, or the willfulness on the part of some other person, the court cited with approval the early English case of Austin v. Drew, 4 Camp. 360 (1815). There an employee in a sugar factory neglected to open a register and as a result a quantity of sugar was damaged by being overheated. The insurance company was held not to be liable, the decision being based upon the proposition there was no fire except in the stove and the flue, as there should have been, and that it was never excessive and was always confined within its proper limits. The McGraw case, supra, has been cited with approval by courts of a number of other jurisdictions.
In our discussion of the distinction between so-called “friendly” and “hostile” fires we will attempt to confine ourselves to the facts here present and to analogous instances.
In the case of Mode, Limited v. Firemans Fund Ins. Co., 62 Idaho 270, 110 P. 2d 840, reported in full at 133 A. L. R. 791, it was held there could be no recovery under a policy insuring against “all direct loss or damage by fire” where a package containing antique jewelry which belonged to the insured was accidentally placed in an incinerator and destroyed by a fire which was intentionally built and confined to such place. The decision was based upon the fact the fire at all times was under control and was such as was customarily employed for the purpose of burning waste and debris gathered up and deposited in the incinerator by the employees of insured; that it was a friendly fire as distinguished from a hostile fire, and that the damage sustained was not “direct loss or damage by fire” within the ordinary meaning of the words when used in the terms of a fire insurance policy.
In Reliance Ins. Co. v. Naman, 118 Tex. 21, 6 S. W. (2d) 743, a servant of insured, without knowledge of its contents, threw a box containing jewelry into a furnace fire. The policy in question insured “against all direct loss or damage by fire.” Recovery was denied on the ground that a friendly fire was not within the undertaking of the insurance company, and that in the sense in which the word “fire” was used in the policy there had been no fire so long as it was kept within the proper and áccustomed place. The holding in this case was followed by the Supreme Court of Michigan, in Harter v. Phoenix Ins. Co. of Hartford, Conn., 257 Mich. 163, 241 N. W. 196. In that case the insured’s household servant picked up an envelope containing two rings from a desk, and, not realizing the envelope contained rings, put it in a wastebasket and later put the contents of the wastebasket, including the rings, in the furnace where, when a fire was built, they were seriously damaged. The court held the fire to be a friendly fire and denied recovery.
To the same effect see Weiner v. St. Paul F. & M. Ins. Co. (1924) 124 Misc. 153, 207 N.Y.S. 279 (affirmed without opinion in (1925) 214 App. Div. 784, 210 N.Y.S. 935) and the annotation following the Mode case, supra, at 133 A. L. R. 797.
From the foregoing authorities, as well as from numerous others which we have examined, the very great weight of authority appears to be that “fires,” within the meaning of standard insuring clauses in fire insurance policies, are classified as friendly or hostile in nature, notwithstanding that such distinction is not made in the language of the policy itself.
A friendly fire is defined as being a fire lighted and contained in a usual place for fire, such as a furnace, stove, incinerator, and the like, and used for the purposes of heating, cooking, manufacturing, or other common and usual everyday purposes.
A hostile fire is defined as being a fire unexpected, unintended, not anticipated, in a place not intended for it to be and where fire is not ordinarily maintained, or as one which has escaped in the usual and ordinary sense of the word. A fire originally friendly, by escaping, becomes hostile, and ordinarily recovery may be had for loss or damage resulting thereby.
The rule is well stated in Progress Laundry & C. Co. v. Reciprocal Exchange (Tex.), 109 S. W. 2d 226:
“In determining the liability of the insurers for the damage sustained, we deem it advisable to note the distinction between fires that are hostile and those that are friendly. We think the overwhelming weight of authorities is that, so long as a fire bums in a place where it was intended to bum and ought to be, it is to be regarded as an agency for the accomplishment of some intended purpose, although damages may have resulted where none were intended, thus such fire is a ‘friendly fire’ and insurers are not liable for damages flowing therefrom; but, where a friendly fire escapes from thé place where it ought to be to some place where it ought not to be, resulting in damages, such fire becomes a hostile peril for which the insurers are liable.”
Words employed in contracts of insurance are to be construed according to the meaning of the terms used, and are to be taken and understood in their plain, ordinary and peculiar sense, so as to give effect to the intention of the parties. (Spence v. New York Life Ins. Co., 154 Kan. 379, 118 P. 2d 514, 137 A. L. R. 753.) (See also G. S. 1949, 77-201, second, relating to statutory construction which, among other things, provides that such words and phrases as may have acquired a peculiar and appropriate meaning in law shall be construed according to such peculiar and appropriate meaning.) In applying the rule the test is not what the insurer intended the words to mean but what a reasonable person in the position of an insured would have understood them to mean. (Braly v. Commercial Casualty Ins. Co., supra.)
We think it cannot be denied that in common parlance and everyday usage one has not “had a fire” so long as it has burned only in the place where it was intended to burn, and where fire ordinarily is maintained. By way of illustration, when a person maintains a fire in his furnace, cookstove or fireplace, or when he burns trash in his incinerator, he has not “had a fire” in the ordinary, common ac ceptation of the term. On the other hand, if a fire on the roof results from sparks from fire in the furnace, cookstove or fireplace, if sparks from the latter should burn a rug or furniture, or if the fire in the trash burner escapes therefrom and sets fire to the garage or fence, such person has “had a fire” for which recovery can be had, notwithstanding the fire was originally friendly.
We think it is quite true to say that when one purchases standard fire insurance he does so with the idea in mind of protecting himself from loss or damage resulting from what the law defines as a “hostile” fire, and that the word “fire,” as used in fire insurance policies, has, in common parlance, such well-understood meaning. In the Mode case, supra, it was stated:
“The meaning of the term loss by fire’ as being a ‘hostile’ and not a ‘friendly fire’ has been so extensively and long recognized that reasonably we must consider, even under liberal interpretation that both insured and insurer contracted with such definition in mind, determinative of what losses were covered.” (P.277.)
We are not unmindful of Salmon v. Concordia Fire Ins. Co. of Milwaukee (La. App.), 161 So. 340, from which insured quotes at length and in which recovery was allowed for the destruction of jewelry under circumstances similar to the case before us. There the court refused to draw a distinction between an accidental loss from a “friendly” fire and an accidental loss caused by a “hostile” fire, and held that in both instances the loss would be a direct result of fire against which the insurer agreed to idemnify the insured. With all due respect to the Louisiana court, we are convinced the decision is not in harmony with the general weight of authority, which fact is borne out in the quotation from Appleman, Insurance Law and Practice, supra.
In our opinion there can be no question but that the fire which damaged or destroyed the sapphire ring was what in law is known as a “friendly” fire. It was intentionally lighted, was for the usual and ordinary purpose of burning trash, and was at all times confined to the place where it was intended, and did not escape.
We are not concerned here with the provisions of a “floater policy,” and neither are we concerned with the question of the negligence or inadvertence of insured’s servant in throwing the ring into the trash burner, which latter fact, according to insured’s argument, made the fire a “hostile” fire so far as insured is concerned. Negligence or inadvertence of an insured or of one of his employees of course ordinarily would not bar recovery — provided the fire causing the loss or damage is what is known in law as a hostile fire. True, here the loss was occasioned by fire — but, it was a friendly fire, and under such circumstances no recovery may be had.
It follows that the court erred in overruling the demurrer to the evidence and in rendering judgment in favor of insured. The judgment of the lower court is therefore reversed.
Smith and Parker, JJ., dissent. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the Shawnee district court sustaining a motion to dismiss an appeal to that court from the Court of Topeka. Appellee filed suit in the Court of Topeka against appellant to recover for damage to property in an automobile collision. Trial was had, and judgment rendered for plaintiff (appellee here) for $112.50 and costs. Defendant appealed to the district court filing an appeal bond as hereinafter set forth. Appellee moved to dismiss the appeal on the ground that appellant had failed to post a bond to secure the costs of appeal as required under G. S. 1949, 61-1002, and his motion was sustained by the district court. Appellant thereafter brought the case here, the sole question being as to sufficiency of the bond filed.
G. S. 1949, 61-1002, relating to appeals from justice or city courts in civil cases, provides:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, unless, by reason of his poverty, he is unable to give security for costs. . . .”
The appeal bond filed in the instant case provided:
“That said defendant will pay all costs of said appeal, as the Court may order and direct.”
The lower court in sustaining appellee’s motion to dismiss said that “the statute requires an absolute condition that the costs of the appeal should be paid while in this bond it provides that only such costs of appeal shall be paid as the Court may order and direct.”
Appellant admits that if the words “as the court may order and direct” are construed to be words of limitation and a curtailment of the obligation of the bond, he cannot prevail. But he contends that these words are different in effect from those which this court has held in previous appeal bond cases were limitations on the obligation, that they are really surplusage and of no effect, and merely recognize appellant’s willingness to submit to the order of the court.
This court has on many occasions examined purported appeal bonds to determine whether they complied with the provisions of G. S. 1949, 61-1002, and has consistently held that the obligation to secure the costs of appeal must be absolute and unconditional, and that on failure to comply strictly with the provisions of that statute, the appeal was not perfected and no jurisdiction vested in the appellate court to hear the case. Where the purported bond lacks the statutory requisites to perfect the right of appeal, the district court does not acquire jurisdiction of the cause.
Soon after the passage of the statute in question, a case somewhat similar to the instant case was before this court (Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585). The pertinent part of the purported bond read “to satisfy such judgment and costs as may be rendered against him therein,” and we said one of the essential requirements is that the party appealing file a good and sufficient bond in the court from which the appeal is taken “to secure the costs of the appeal,” and that the appeal bond given did not comply with the statute. See also Morse v. Schaake, 141 Kan. 473, 41 P. 2d 1009, and Grigsby v. Coyle, 165 Kan. 445, 196 P. 2d 181.
This court has consistently applied a strict construction to the terms of G. S. 1949, 61-1002. In Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080, we said:
“Since its enactment in 1931 this court has been earnestly and repeatedly urged to modify this particular statute by rules of interpretation. But we have been constrained to hold that there is no ambiguity in the statute, consequently its potency cannot be minimized by interpretation. (Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585; Id., 139 Kan. 17, 29 P. 2d 1115; Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337; Morse v. Schaake, 141 Kan. 473, 41 P. 2d 1009; Owen-Fields v. Allen W. Hinkel D. G. Co., 143 Kan. 184, 53 P. 2d 496.)”
In the case of Montgomery Ward & Co. v. Ellis, 154 Kan. 131, 114 P. 2d 802, the appellant filed two bonds. The first obligated the plaintiff therein to pay the costs in case the judgment be affirmed in whole or in part. The second bond obligated the plaintiff and its surety to pay the costs of appeal in case the judgment should be affirmed in whole or in part. The court held both bonds conditional and void, stating that the second appeal bond, like the first, only bound the plaintiff and its surety conditionally— that they would pay the costs of appeal in case the judgment should be affirmed in whole or in part, and not otherwise. We said in that case:
“Such a bond did not obligate the maker and surety to secure the costs of the appeal. Suppose plaintiff should win its lawsuit on appeal and the city court’s judgment be reversed? Ordinarily the defendant would be adjudged to pay the costs. But suppose the defendant was judgment proof? 1-Iow would the witness fees and other court costs be paid? Under either of the appeal bonds tendered by plaintiff, there would be no bond 'to secure the costs of the appeal’. Because the legislature intended that such a situation should not arise, and also intended to make adequate provision to secure the costs of the appeal irrespective of the outcome of the appeal, the statute was enacted as it now stands. This court has no alternative but to enforce the statute as written . . .”
The same reasoning stated by the court in the Montgomery Ward case, supra, is applicable to the bond in the instant case. When a bond obligates a party to pay the costs of appeal as the court may order and direct, he has not unreservedly and unconditionally obligated himself to pay the costs of appeal. The statute governing such bond, G. S. 1949, 61-1002, requires an obligation to “pay the costs of appeal,” period. It is clear, unambiguous, and easy to follow. The obligation to pay the costs of appeal must be absolute, regardless of what the court may order and direct.
The appeal bond given in the instant case did not provide for the unequivocal payment of the costs in any event and was therefore void; consequently the district court did not acquire jurisdiction of the appeal. The judgment is affirmed.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when plaintiff was caught between a truck driven by one of defendants and a pillar in the driveway of an elevator where plaintiff was employed. Judgment was for the plaintiff. Defendants have appealed.
The case was here before. (See Hukle v. Kimble, 169 Kan. 438, 219 P. 2d 434.) At that time the trial court sustained a demurrer to plaintiff’s evidence. Plaintiff appealed. We reversed and directed the trial court to proceed with the action.
The petition alleged first the residence of the parties, that Minson and Kimble were holders of a common-carrier permit and as a prerequisite to the issuance of this permit the state corporation commission required a liablity policy of insurance to be filed with the commission; that Minson and Kimble did obtain such policy from defendant insurance company and filed it with the commission; that this policy provided the company would pay any damages incurred as a result of the negligent operation of a certain 1944 Chevrolet truck; that Kimble and Minson were operating as a partnership under the name of M & K Truck Line on November 30, 1946. The petition then alleged that on November 30, 1946, plaintiff was employed by the Mulvane Cooperative Union and was performing the duties of his employment when defendant Kimble drove his truck into the elevator and against plaintiff in a negligent manner and crushed plaintiff against a cement pillar; that Kimble was guilty of negligence, in operating the truck with insufficient lights, in failing to keep a lookout, in operating the truck with faulty brakes, in operating the truck so that he could not stop when he saw, or could have seen, plaintiff, in failing to allow sufficient clearance between the truck and the cement pillar, in driving at an excessive rate of speed, in driving into the elevator before he was authorized to do so, in operating the truck of a width in excess of that allowed by law, in failing to stop immediately when he saw, or should have seen, plaintiff, in running into plaintiff and crushing him against the pillar; that one or more of these acts of negligence were the proximate cause of plaintiff’s injuries; that Kimble was operating the truck for himself and Minson, his partner, and the defendant insurance company was liable under its policy. The petition then alleged plaintiff’s injuries. The prayer was for damages in the amount of $31,055.76.
The defendants filed a joint answer in which they denied all facts not admitted; they admitted the residence of the parties and the issuance of the policy; they denied specifically that at the time of the damage the truck was being operated pursuant to a common-carrier permit; that Kimble and Minson were operating as a partnership; and that on November 30, 1946, Kimble was operating the truck on behalf of Minson. The answer then alleged that plaintiff was guilty of contributory negligence in walking into the path of the truck, in failing to keep a proper lookout, in entering the truck passageway through the elevator when he knew, or should have known, the truck was passing through the passageway, in failing to give warning to other users of the passageway of his intention to enter it.
At the close of plaintiff’s evidence the defendants demurred to it generally, on the ground it did not show facts sufficient to prove a cause of action in favor of the plaintiff and against the defendants and proved the plaintiff to be guilty of contributory negligence.
Defendant Minson demurred specially on the ground the evidence showed affirmatively he did not have any interest in the operation of the truck. These demurrers were overruled.
The jury returned a general verdict in favor of the plaintiff. The defendants moved for judgment notwithstanding the verdict on the ground tire evidence did not disclose any negligence on the part of the defendants; that it affirmatively showed the plaintiff was guilty of negligence, which was the proximate cause of his injuries; that their demurrer to the evidence should have been sustained; and that it affirmatively appeared that Minson was not a partner of the defendant Kimble.
Defendants also filed a motion for a new trial on the ground of misconduct of the jury, erroneous rulings, erroneous instructions, the verdict was contrary to the evidence, newly discovered evidence, the demurrer to the evidence should have been sustained; and the court erred in giving Instruction No. 8. Roth these motions were overruled. On the hearing of the motion for a new trial evidence was heard upon the question of whether or not the verdict was a quotient verdict.
The specifications of error were that the court erred in not sustaining the demurrer to the evidence, not sustaining the special demurrer of defendant Minson, in submitting erroneous instructions, in not sustaining the defendant’s motion for judgment notwith standing the- verdict, and not sustaining defendant’s motion for a new trial.
Defendant argues first, plaintiff’s evidence did not show Kimble, the driver of the truck, was guilty of any negligence, the negligence with which he was charged was operating the truck with insufficient lights, failure to keep a lookout, operating the truck with faulty brakes, failing to allow sufficient clearance between the truck and the cement pillar, driving at an excessive rate of speed, driving into the elevator before he was authorized to do so, in operating a truck of a width in excess of that allowed by law, in failing to stop immediately when he saw, or should have seen, plaintiff, and in running into plaintiff and crushing him against the pillar.
There are some physical facts about which there is no dispute. They will be stated now.
The injury occurred in what is commonly known as the driveway of a grain elevator. It runs north and south. There is a door at each end. There is an electric light in the driveway but it was not on at the time. The driveway is about sixty feet long. Trucks loaded with grain enter at the south door, unload at a dump located about midway, and drive empty out the north door. The plaintiff was about forty feet north of the south door when hit. This was the door at which the truck entered the driveway. It was headed north. There is a doorway on the east side of the driveway opening into a feed room. There is a compressor switch just inside the doorway about six inches from the edge. As one comes from the feed room through this doorway into the driveway there are pillars about one foot on each side of the doorway. These pillars project into the driveway about 9Y% inches. The driveway is about nine feet, four inches wide between the pillars. The truck was about eight feet wide.
The plaintiff had learned from a conversation between the truck driver and his employer that his employer was going to buy the load of corn with which the truck was loaded. He left the office and went to the driveway. He opened the south door of the driveway, which was the door through which the truck loaded with corn would enter. He swept some corn into the dump with a broom and was walking toward the south door of the driveway to open it when he was struck. Mr. Kimble had been on the premises prior to that time. Plaintiff did not signal the driver to enter and Kimble did not sound his horn and there was evidence that his truck lights were not on. There is no controversy about the foregoing. The plaintiff testified that generally trucks were motioned to come in when the operator was ready for them to enter. He testified he was hit at the pillar just north of the driveway and that he first knew he was in danger when the front fender of the truck brushed his leg; that he attempted to move aside and he was caught between the corner of the truck and the pillar and that defendant Kimble was the first to reach him, and stated he did not see him “I was watching the other side of the truck or driveway.” The plaintiff testified that Copeland, the manager of the elevator, his employer, had to go round to the left side of the truck to reach him and had no difficulty in doing so.
On cross-examination plaintiff testified he knew that when a truck was passing the pillars there wasn’t room enough for a man’s body between the truck and the pillars; that he knew when he saw the truck on the scales that it was going to come on the driveway. He testified that when he left the office he went into the driveway and opened the south door; that there was a light in the driveway but he didn’t turn it on because with the south door open he did not need it; that he went to the dump which was in the center of the driveway and swept some grain into it. He further testified “I next saw Mr. Kimble when I shut the door to the dump, turned around to turn on the air compressor”; at that time the truck was about thirty feet from him; his front wheels were right in the door and he thought the truck was moving. He then testified about the pillars and that he had taken about three steps when the truck hit him. He testified that the south pillar was between him and the truck; that he was facing east and was not looking in the direction of the truck; that he had turned left and started toward the north door; that as he started north he stepped out from behind the pillar and did not look to the south to see where the truck was, and the next thing he knew the truck’s fender brushed him and he was caught between the corner of the bed of the truck and the southwest corner of the pillar just north of the driveway.
The defendants recognize we held the evidence in a former record sufficient to require the submission of the issue of negligence to the jury. They argue, however, the evidence in this record was sufficiently different from that at the former trial so that the holding there is not binding here. They rely in the main on the fact that in the former record the plaintiff testified the last time he saw the truck it was turning to come in the south door while in this record he testified the front wheels of the truck were in the south door of the driveway when he last saw it. They make the categorical statement that plaintiff testified he thought the truck was moving when he saw it at the south door. As a matter of fact the record is as follows: “Where were the front wheels?” He answered “If I remember right, right in the door.” “It was moving, was it not?” The answer was, “Í thought so.” “I had not signaled for him to come in. I did not observe if he was moving or not. It had made a complete circle and had its front wheels in the door. At the time it had its front wheels in the door, I was turning on or about to turn on the switch. This switch is inside the mill proper and is a common lever ‘D’ switch. JR was about shoulder high off the floor.”
They make a further point of the' fact that the plaintiff in this case stated there was sufficient light so he did not turn on the light switch after the south door was open.
All the parties concede the rule to be that in considering a demurrer to the evidence we must draw all inferences from it favorable to the plaintiff and disregard all contradictory or conflicting evidence. It is conceded also that both parties owed the duty to exercise ordinary care.
One of the grounds of negligence we held in the former case should have been submitted to the jury was the failure of defendant to have his lights turned on when he drove into the driveway. Defendants point out here that at this trial the plaintiff testified “There was a light in the driveway which is turned on by a switch on the west wall but I didn’t turn it on because with the south door open, I didn’t need it.” They argue that such testimony actually acquits them of the 'negligence of driving into the driveway without having their lights turned on. Were that the only negligence with which defendants were charged our question might be different.
The next act of negligence we discussed in the former opinion was that Kimble failed to keep a proper lookout. Defendants argue then there was no evidence at all to that effect. We reversed and held'there was. This record is about the same as the former one in that respect. The narrowness of the driveway, the width of the truck, the statement of plaintiff as to where he was and the statement of Kimble that he didn’t see him “I was watching the other side of the truck or driveway,” is sufficient to require the submission of the issue of plaintiff’s negligence to the jury.
On the matter of whether plaintiff’s evidence proved him to have been guilty of contributory negligence as a matter of law, defendants first point to his testimony that when he last saw the truck its front wheels were at the south door, and that he did not turn on the light in the driveway. They point out further that he testified he did not look back at the truck any more and assumed that the driver would look out for his safety. Defendants make the statement in their brief that knowing the danger of his surroundings plaintiff neglected to make any observance of a known dangerous condition and walked into the side of defendant’s truck. The record hardly bears out such a statement. The testimony of plaintiff was that after turning on the compressor switch, at which time he last saw the truck at the south door, he turned and took three steps toward the north door and he did not know the truck was near him until he felt it against his leg. His duty took him to the north door to open it so that the truck could be driven out when unloaded. Defendant Kimble had been there before with grain. It was the custom to signal an oncoming truck when the operator was ready for it to be driven in. Plaintiff had not given such a signal. He had a right to rely on the truck not being driven in until he gave the signal. Besides this, plaintiff’s testimony makes it a jury question whether he was directly in the path of the truck when it was being driven in. We said in the former opinion:
“We think it too strict an interpretation of the plaintiff’s evidence. We have demonstrated that it was a question for the jury whether Kimble failed to exercise due care when he drove into the driveway without turning on his lights and before he had been given the signal to do so. Such being tire case, it is a jury question whether plaintiff had a right to rely on Kimble not coming in without his lights turned on and before he was given the signal to. Furthermore, we have demonstrated it was a question for the jury whether Kimble kept the proper lookout, hence it is a jury question whether plaintiff had a right to rely on Kimble keeping a proper lookout. Plaintiff was going about his duties in walking toward the north door to open it. In view of all the surrounding facts and circumstances, we cannot hold plaintiff was guilty of contributory negligence as a matter of law.”
We find nothing in the record of the second trial to warrant a different conclusion than the above.
Defendant Minson next argues that his special demurrer should have been sustained because plaintiff’s evidence showed he was not a partner of Kimble at the time. On this question plaintiff called defendant Kimble to testify. He testified that Minson was not his partner on the date in question and that the relationship had ceased. Plaintiff relies on the insurance policy that was issued to Minson and Kimble doing business as the M & K Truck Line and certain reports to the corporation commission signed by Kimble for the M & K Truck Line. We have concluded that since Kimble was plaintiff’s witness on the question of partnership the evidence contained in the papers must yield to the direct testimony. This is supported by the fact that it is uncontradicted that Kimble on this occasion was hauling his own corn. Minson’s demurrer to the evidence should have been sustained.
Defendants next argue that the court erred in not giving an instruction on the defendant’s duty upon leaving a place of safety. We have heretofore demonstrated that there is no evidence in this record to warrant such an instruction. The nearest to such was the testimony of plaintiff that had he remained with his arm through the door turning on the compressor switch only his feet would have been run over. He never was in a position of safety.
Defendants next argue the trial court erred in not sustaining their motion for judgment notwithstanding the verdict. This is but a repetition of the argument on the demurrer to the evidence. We have already dealt with it.
Defendants next argue that the trial court erred in overruling their motion for a new trial. One of the grounds of this motion was misconduct of the jury. On the hearing of the motion for a new trial testimony of various members of the jury was heard on the question of whether the verdict was a quotient verdict. One of the jurors testified as follows:
“Q. Without giving any of the other deliberations — in other words, without telling what was in your mind — I would like to ask you how this verdict was arrived at, the amount of this verdict? A. Mr. Brann was the foreman of the jury and he asked that — or suggested that if the — there was a judgment, which he thought there should be, if we would all put down an amount on a piece of paper, which we did, then someone in the group added it up and divided it by 12 and arrived at the $5,208.33, and then Mr. Brann said, ‘Is there anyone that feels this is an unfair amount? Is this the amount that all of us wish, if you don’t feel that way why speak up now,’ and we all agreed that that would be the amount that we felt was right.
“Q. And there had been something said before the quotient was taken, before you divided by 12 to do that to arrive at a verdict? A. I think so. I think it was. I think it was agreed that, that before we wrote down those amounts that that would be the fair way, if one person said one amount and someone else said something higher and not knowing any better way, we agreed that an average would be right, and we discussed the average after we took it.’’
The foreman of the jury testified as follows:
“Q. You have heard the testimony of these two other jurors? A. Yes, sir.
“Q. Is that what occurred there at the time? A. That is correct.
“Q. Do you have anything to add to it at all? A. I don’t know as there is anything I could add. I thought it was fair and square.
“Q. You suggested that you add their respective figures together and then divide the sum by 12 and that that would be adopted as the verdict; is that right? A. Well, yes..”
Plaintiff realizes the potency of this evidence and seeks to counteract it by claiming that on cross-examination these jurors testified that they were asked after the quotient had been reached whether they believed the amount to be fair and all the jury members said it was. The fact remains, however, that the evidence is uncontradicted, that the jury members all agreed that the quotient would be the verdict and it was. We have concluded that the verdict was arrived at in a manner condemned by what we held in Neiswender v. Shawnee County Comm’rs., 153 Kan. 634, 113 P. 2d 115, and Flaharty v. Reed, 170 Kan. 215, 225 P. 2d 98. The result is the trial court erred in overruling the defendant’s motion for a new trial.
In view of the fact that this is the second time this case has been here we will consider whether the defendants should have a new trial on all the issues or on the question of the amount of damages only. G. S. 1949, 60-3004, deals with the consideration of motions for a new trial on certain specified grounds. The last sentence is as follows:
“A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such issues are separable.”
There was nothing wrong with this trial except the manner in which the jury arrived at the amount of the verdict. The matter of the amount of the verdict is sufficiently distinct from the issue of the negligence of plaintiff and contributory negligence of defendant that there is no necessity for retrying them. In Carlgren v. Saindon, 129 Kan. 475; 283 Pac. 620, we said:
“When specific controverted issues have been once determined in a trial, either before the court, or the court and the jury, and some points at issue have not been determined, or have been improperly determined, where the points determined and those not determined are sufficiently distinct from each other that there is no necessity of retrying all issues in order to determine those which had not been determined, there is no occasion for retrying the issues determined. A retrial, if necessary, should be of the issues only which have not been determined.”
See, also, Thompson v. Burtis, 65 Kan. 674, 70 Pac. 603; Leeman v. Page, 79 Kan. 479, 100 Pac. 504; McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176; Railroad Co. v. Thisler, 90 Kan. 5, 133 Pac. 539; id., 96 Kan. 184, 150 Pac. 580; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 588; Packard v. Packard, 95 Kan. 644, 149 Pac. 404; Ballou v. Railway Co., 95 Kan. 761, 152 Pac. 284; Harris v. Drenning, 101 Kan. 711, 168 Pac. 1106; Scoby v. Bank, 112 Kan. 135, 140, 211 Pac. 110; Fontana v. Integrity Mutual Casualty Co., 120 Kan. 406, 243 Pac. 1035; also Evans v. Mosely, 84 Kan. 322, 332, 114 Pac. 374; id., 87 Kan. 447, 124 Pac. 422; Supply Co. v. Bank, 103 Kan. 654, 176 Pac. 129; Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027; Gill v. Smith, 121 Kan. 18, 21, 245 Pac. 1041; McGarr v. Schnoor Cigar Co., 125 Kan. 760, 768, 266 Pac. 73.
All these authorities are in point here.
The judgment of the trial court is reversed with directions to grant defendant Kimble and Home Mutual Insurance Company a new trial on the question of damages only and to enter judgment in favor of defendant Minson. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action to recover from the estate of decedent for personal services rendered to her during her lifetime. Judgment was rendered in favor of the estate, and claimant appeals. For purposes of clarity claimant will be referred to as appellant and the estate of Lida G. Fitzroy as appellee.
Appellant filed her petition for allowance of a demand against appellee alleging that she was a creditor of appellee and had a just and valid claim for work and labor performed by her for Lida G. Fitzroy during her last illness, covering a period of 487 weeks from February 14, 1940, to February 8, 1950; that she had not been paid for work and labor performed, and that the fair value of her services was $20 per week, and included a prayer for judgment against appellee in the sum of $9,740.
Appellee by way of answer to appellant’s petition denies all the allegations of fact except appellee admits that appellant did perform services on behalf of Lida G. Fitzroy, deceased, but alleges that such services were performed under an express verbal contract between appellant and deceased; that said deceased agreed to pay and appellant agreed to accept the sum of $3 per week, and in addition thereto appellant was to receive her board and room, and that during the entire time of employment, appellant did receive her lodging and meals and the sum of $3 per week, and further alleges that the statute of limitations had run against all appellant’s claim except that portion thereof which became due within the three-year period immediately prior to the time of filing her petition for allowance of demand, and that appellant is therefore entitled to recover nothing by reason of her demand. By way of cross petition appellee asserts that appellant handled money belonging to decedent and made purchases of groceries and other necessaries for said decedent; that appellant was in a confidential and fiduciary relationship to said decedent during her lifetime; and appellee prays judgment requiring appellant to render a true and correct accounting of all moneys which came into her possession or which were entrusted to her during the period of her employment; that appellant be ordered to bring into court all records and receipts bearing thereon, and to itemize all amounts paid to her by decedent; and that appellee have judgment against appellant for such amount as the court shall find due.
The case proceeded to trial on the issues as formed, at the conclusion of which the court made the following conclusions of fact and law:
“Conclusions of Fact
“1. Mabelle A. Bachmann was employed by the decedent, Lida G. Fitzroy, on or about the first Sunday in October, 1940, to do and perform general household duties and personal care of the decedent, for which said decedent agreed to pay to the said Mabelle A. Bachmann the sum of Three Dollars ($3.00) per week, and in addition thereto, the decedent agreed to furnish said claimant room and board.
“2. At the time claimant went to work for Lida G. Fitzroy, the decedent, Mrs. Fitzroy, had just returned from the hospital where she had a cataract removed from one eye, she being at that time blind in the other eye. Her sight, in the eye from which the cataract was removed, returned to her in a matter of probably two weeks. Thereafter, she was able to get around with someone helping her. During said two weeks period, claimant Mabelle A. Bachmann rendered personal services to said decedent, as well as performed general household duties, in accordance with said contract of employment. Thereafter, decedent recovered to such an extent that personal services theretofor rendered by the said claimant were unnecessary until about the first day of January, 1943, when decedent became totally blind; thereafter, claimant rendered to said decedent the same kind of personal services and performed the same general household duties as said claimant had rendered and performed during the first two weeks of said employment and continued to render and perform such services until the death of said decedent, which occurred on the 10th day of February, 1950.
“3. Claimant was in the continuous employment of said decedent, Lida G. Fitzroy, and subject to call day and night for personal services rendered from the first Sunday in October, 1940, until the 10th day of February, 1950; that at the time of her death, decedent was 84 years of age and the claimant was more than 60 years of age.
“4. The periods of time for which claimant rendered services for said decedent, the amounts due, and the credits of payment thereon are as follows:
The total amount due and unpaid under the express agreement of claimant and decedent is the sum of Six Hundred and Twenty-five Dollars ($625.00).
“5. The aforesaid contract between said claimant and decedent was never changed, modified or altered by mutual consent, or otherwise, during the entire period of claimant’s employment by decedent.”
“Conclusions of Law
“1. The petition for allowance of demand of claimant Mabelle A. Bachman is based upon a quantum meruit, and seeks to recover the reasonable value of services rendered.
“2. The express oral agreement of claimant Mabelle A. Bachman and the decedent, Lida G. Fitzroy, fixed the value of claimant’s services and such agreement controls and the said claimant is bound thereby.
“3. The petition for allowance of demand not being based upon the said express oral agreement, claimant cannot recover herein and the executor, Raymond McKabe Green, is entitled to judgment against said claimant for costs.”
To the conclusions of fact and law, appellant filed a motion for new trial and appellee filed his motion for judgment based upon the court’s conclusions of fact and law. These matters were heard; appellant’s motion for new trial was overruled, and appellee’s motion for judgment based upon the court’s conclusions of fact and law was sustained and judgment rendered by the court against appellant and in favor of appellee for costs. This appeal is from such ruling and judgment, appellant asserting that the findings of fact are contrary to the evidence, and do not support the conclusions of law of the trial court in rendering judgment for the appellee.
Before considering the questions raised by appellant, we are confronted with a motion to dismiss this appeal because appellant has failed to comply with the requirements of G. S. 1949, 60-3311 pertaining to filing a transcript of proceedings in the lower court. Appellee denies the right of appellant to determine what testimony constitutes a complete transcript and challenges the correctness and completeness of the evidence presented by appellant’s abstract in this court.
However, the want of a transcript and the consequent want of a complete abstract of the evidence do not always require a dismissal; the want of these merely limits the scope of review. (Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; Kasper v. Miller, 159 Kan. 488, 156 P. 2d 550.)
Here the appellant filed an abstract which included the pleadings in the action and findings of fact and conclusions of law made by the court. Appellant apparently recognized the rule stated and therefore does not specify error in overruling of his motion for new trial, but limits the review in this case to two questions: (1) That the findings of fact are not supported by the evidence; and (2) the conclusions of law upon which the judgment was based were erroneous and the lower court entered a wrong judgment.
As to appellant’s first contention, inasmuch as no transcript was filed, we must and do assume there was sufficient evidence to support the findings of fact of the trial court and we accept them as correct. (Addington v. Hall, 160 Kan. 268, 160 P. 2d 649, and cases cited therein on page 270; Barker v. Chicago, R. I. & P. Rly. Co., 158 Kan. 549, 148 P. 2d 493.)
With the findings established, there remains but one question for decision. In the light of the facts as found, was the trial court’s conclusion of law erroneous? We are of the opinion that it was. In brief, it is appellee’s contention that inasmuch as appellant filed her demand against the estate on a quantum meruit basis, she is now barred from recovering anything on the contract of employment asserted by appellee. It will be noted that appellee admits the services performed by appellant and the court so found, but alleges that said services were performed under an oral agreement between appellant and deceased, based on payment, of the sum of $3 per week plus board and room. The court found in its finding No. 4 that appellant rendered services to said deceased, the amount due and the credits of payments thereon were set forth, and found there was due and unpaid to appellant under the express agreement with decedent the sum of $625. The issue before the court as disclosed by the pleadings and the findings was whether appellant was entitled to recover on the basis of quantum meruit or under the oral contract.
A similar situation arose in the case of Brigham v. Carpenter, 110 Kan. 104, 202 Pac. 976, and this court said:
“Not only were the services admittedly performed, but the defendant offered to confess judgment for $1,146. How then could the court instruct the jury to return a verdict for defendant? He seems to think that since the plaintiff failed to establish the implied contract and his consequent right to the customary commission, he is not entitled to any commission — not even the amount defendant admitted to be due and for which sum he offered to confess judgment. The court cannot follow the subtlety of this argument. We recognize, of course, that an action on an implied contract is not established by the proof of an express contract, nor vice versa; but while the petition in this case declared upon an implied contract, the answer and reply both brought into the case the issue of an express contract (Conaway v. Gore, 24 Kan. 389), and the issues as made up permitted oí a recovery upon either an implied contract or an express contract. (Berry v. Craig, 76 Kan. 345, 346, 91 Pac. 913; Templeton v. Biegert, 79 Kan. 638, 642, 100 Pac. 654; Wiley v. Locke, 81 Kan. 143, 145, 105 Pac. 11.)”
Again we said, in Darnell v. Haines, 119 Kan. 633, 240 Pac. 582, at page 635:
“This court is fully committed to the doctrine that a suit on an implied contract to pay the reasonable value of services rendered, does not deny existence of an express contract to pay a definite sum for the same services; that action on one theory is not incompatible with recovery on the other, notwithstanding the difference in proof and measure of recovery; that both theories may be tendered as grounds for recovery in the same action; and that, although there can be but one recovery, plaintiff may not be required to elect, but may go to the jury on both. (Berry v. Craig, 76 Kan. 345, 91 Pac. 913; Wiley v. Locke, 81 Kan. 143, 105 Pac. 11; Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159; Brigham v. Carpenter, 110 Kan. 104, 202 Pac. 976.) In Brigham v. Carpenter, the petition pleaded an implied contract to pay the reasonable value of services. The answer pleaded an express contract to pay a definite sum. The court held that Brigham might recover on either theory. While proof of the express contract would defeat recovery on the implied contract, it would not defeat recovery.”
See also Jerecki Manufacturing Co. v. Shields, 169 Kan. 640, 220 P. 2d 144.
In the instant case appellant pleaded an implied contract to pay a reasonable value for her services. Appellee’s answer pleaded an express contract to pay a definite sum. While proof of the express contract would defeat recovery on the implied contract, it would not defeat recovery. Inasmuch as appellee has invoked the jurisdiction of the court by his answer setting up the express contract as a defense, and the trial court has made a finding in accordance thereto, it does not now lie in his mouth to repudiate that defense.
In view of the pleadings and findings of fact made by the trial court, it becomes the duty of this court under the mandate of the Civil Code to order the proper judgment. (G. S. 1949, 60-3317; Devlin v. City of Pleasanton, 130 Kan. 766, 288 Pac. 595.)
The judgment of the lower court is reversed and the case remanded, with instructions to render judgment in favor of the appellant and against the appellee in the sum of $625 together with interest and costs. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling a motion to strike the petition in a damage action.
The question involved concerns the jurisdiction of a court to entertain an action when the petition on file shows on its face that compliance with G. S. 1949, 7-104, with reference to the association of local counsel, has not been made.
The factual background of the matter is this:
On January 24, 1951, plaintiff filed the action. His petition was signed:
“Thomas Paul Downs,
501 Columbia Bank Building,
Kansas City 6, Missouri,
HA 0710,
Attorney for Plaintiff.”
On February 15, 1951, defendant answered by way of a general' denial.
The case was set for trial for June 6,1951. On June 5th defendant filed a motion entitled “Motion to Strike,” the material portions of which are:
“Now Comes the Defendant . . . and moves the Court to strike from the files in this case the alleged Petition of the Plaintiff filed herein and to strike from the Docket of this Court all of the proceedings and filings herein for the following reason, to-wit:
“That it is provided by Section 7-104 of the General Statutes of Kansas of 1949, as follows:
(Quoting from statute.)
“Defendant shows to the Court that the person who signed the Petition in this cause resides in and has his office in the City of Kansas City, Missouri, and is admitted to practice in the State of Missouri, and has not associated with him in this cause any Attorney who is a resident of and maintains his law office within the Fourth Judicial District, and that it has not been made to appear by a written showing filed herein that he has associated with him such Attorney, and that this Court is prohibited by law from entertaining this action or any matter, hearing, or proceeding in connection therewith by reason of said Statute.”
On June 6, 1951, this motion to strike was overruled and the parties were directed to proceed to trial. Counsel for plaintiff made an oral request for a continuance. The court directed him to file a statutory affidavit for such, if he so desired. This was done. The court found the affidavit for continuance to be insufficient and denied the motion. Counsel for plaintiff then announced that he was unprepared ánd unwilling to proceed to trial as directed by the court. Defendant moved to dismiss the action for want of prosecution. This motion was sustained and the court ordered that the action be dismissed for want of prosecution, and that defendant recover judgment against plaintiff for costs.
Notwithstanding the action was dismissed, defendant, for reasons good and sufficient to him, but which for the purposes of this appeal we do not consider material or necessary to discuss, in due time appealed from the order overruling the motion to strike the petition from the files and docket. The notice of appeal was served on plaintiff personally. The specification of error is:
“The Trial Court erred in overruling Appellant’s Motion to Strike the Petition and all proceedings in said cause from the files, and in entertaining said action.”
G. S. 1949, 7-104, reads:
“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other administrative tribunal or agency, of this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he has associated and personally appearing with him in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, upon whom service may be had in all matters connected with said action, hearing or proceeding, with the same effect as if personally made on such foreign attorney, within this state, and such foreign attorney shall thereupon be and become subject to the order of, and amenable to disciplinary action by the courts, agencies or tribunals of this state: Provided, That in all actions before a court of record, said associate attorney shall be a resident of and maintain his law office within tire judicial district in which said action is filed or pending. No such court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this section: Provided, Nothing in this section shall be construed to prohibit any party from appearing before any of said courts, tribunals or agencies, in his own proper person and on his own behalf.”
With commendable frankness, defendant concedes that ordinarily the denial of a motion to strike a petition is not an appealable order unless such motion can be said to be the equivalent of or tantamount to a demurrer, but he argues that this motion was tantamount to a demurrer in that it directly challenged the jurisdicion of the court to entertain or consider the petition in the form in which it was filed. Be that as it may, irrespective whether the motion under consideration be considered as the equivalent of a demurrer, and irrespective of the reasons which prompted this appeal, we think the order overruling the motion is appealable. Here we are not dealing with the usual or ordinary motion to strike or dismiss, but rather with a motion based solely on the proposition that under this special statute the court had no jurisdiction whatever to entertain the action.
The question, then, is — Should the court have stricken the petition from the files and docket?
It appears that the precise question has never been before this court for decision.
Insofar as the facts of this case are concerned we have no difficulty in applying what appears to be the clear mandate of the statute, and we confine ourselves to those facts.
The petition shows on its face that the attorney who filed it is a "regularly admitted practicing attorney in the courts of record of another state.” The statute provides that such an attorney may, on motion, be admitted to practice in a court of this state for the purpose of the particular business at hand upon a written showing that he has associated and personally appearing with him in the action or proceeding an attorney who is a resident of and duly admitted to the practice of law in Kansas, and who is also a resident of and maintains his law office within the judicial district in which the action or proceeding is filed or pending.
Nowhere in the petition, or in any other document filed, is there a showing of any kind that counsel for plaintiff even attempted to comply with the plain and unambiguous requirement of the statute.
The statute further provides that no court shall entertain any action or proceeding while the same is begun, carried on or maintained in violation of its provisions. As here used we think the word “entertain” means “to receive and take into consideration.” (30 C. J. S., p. 261.) In other words, any pleading filed which on its face shows a violation of the statute is the same as no pleading at all, and a court is expressly prohibited from “entertaining” it — that is, from receiving and considering it.
In its application to certain isolated instances the statute may be somewhat ambiguous in that it is silent on the matter of residence of such “foreign” attorney, and as to its application to a “foreign” attorney who is also admitted to the practice of law in Kansas. However, the remedy must he with the legislature — not this court. Here the petition showed on its face that the attorney who filed it was subject to the provisions of the statute and that he did not comply with those provisions. Under such circumstances the court simply had no jurisdiction to entertain or consider the petition and we think it should have been stricken.
For the reasons stated, the order of the lower court is therefore reversed with directions to sustain the motion to strike.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order overruling defendant’s motion to vacate and set aside an alimony judgment on the ground it violated the requirements of G. S. 1949, 60-1511 for definiteness and was therefore void.
Appellee contends the appeal should be dismissed. Examination of reasons advanced in support of the contention convinces us they lack sufficient merit to warrant treatment. The motion to dismiss the appeal is denied.
The judgment assailed, by appellant was rendered in a divorce action in May, 1944. The journal entry discloses a definite and unqualified permanent alimony judgment was rendered in the sum of $10,000. There was no provision for its payment in installments. Counsel for appellant states appellant was in the military service and not present at the trial. The journal entry recites he appeared in person. In any event he was represented by able and experienced counsel who approved the judgment in the form and manner journalized. There was no appeal from the judgment. The judgment also provided for the support of two minor children by appellant in the sum of $50 per month. There is no complaint here concerning that provision.
In April, 1946, appellant was discharged from the military service and in June, 1946, appellant’s counsel, not his counsel at the time of trial or now, filed a motion for an order nunc pro tunc to revise the journal entry. The motion was not presented to the court until September 11,1950, at which time appellant was cited for contempt for failure to comply with the alimony judgment.
The judge of division No. 1 of the district court of Sedgwick county, who had rendered the decree of divorce and alimony judgment was absent by reason of illness and a judge pro tem heard the motion. 'The judge who rendered the judgment was not available and was in nowise consulted concerning the motion for the nunc pro tunc order. The evidence introduced in support of the motion consisted of comments in the record made by the trial judge in the course of colloquies with counsel during and at the conclusion of the trial. Present counsel for the parties disagree concerning the intent and the legal effect of the trial judge’s comments. The judge pro tem found appellant not guilty of contempt but ordered the journal entry changed so as to read:
. . that said plaintiff have judgment against the defendant in the sum of $10,000 to be paid out- — no, $10,000 permanent alimony to be paid out as long as he is in the army in whatever amounts allowable by the army.”
It is appellant’s contention the above order reflects the true judgment rendered and that it is void under the provisions of G. S. 1949, 60-1511 for the reason the alimony judgment as corrected is indefinite with respect to the amount of installment payments and die time within which the alimony judgment ultimately must be paid, citing Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Biffer v. Biffer, 170 Kan. 304, 224 P. 2d 993. In view of the conclusion we have reached concerning the instant appeal we need not discuss the merits of that contention.
The established purpose and function of a nunc pro tunc order has been stated frequently. In Bush v. Bush, 158 Kan. 760, 150 P. 2d 168, we held:
“If a journal entry of judgment fails to accurately reflect a judgment actually rendered courts have a right and duty to make it speak the truth.
“The function of a nunc pro tunc order is not to make an order now for then, but to enter now for then an order previously made.” (Syl. f 1, 2.)
To the same effect are French v. French, 171 Kan. 76, 229 P. 2d 1014, and numerous other cases.
Appellant attempted to appeal to this court from the various orders of the district court. The appeal was not properly perfected and was dismissed.
Thereafter appellant filed the instant motion in the district court to vacate the original alimony judgment rendered in May, 1944, as shown by the nunc pro tunc order. The substance of the motion was that the nunc pro tunc order made by the judge pro tem properly reflected the true alimony judgment rendered by the trial court and that such judgment was void for indefiniteness. This motion was presented to and heard by the trial judge who rendered the original alimony judgment. He was, therefore, called upon to examine and interpret his own remarks made in the divorce and alimony action. He denied the motion.
On the basis of the record before us are we justified in reversing this judgment which permits the original definite and unqualified permanent alimony judgment in the sum of $10,000 to stand? We do not think so. The alimony judgment, as reflected by the journal entry, complies fully with the provisions of G. S. 1949, 60-1511 and with every decision of this court on the subject. The journal entry of judgment, as previously stated, discloses it was approved by counsel wbo represented appellant. Notwithstanding remarks made by the trial court during the trial there is no evidence by appellant’s able and experienced original counsel that he failed to understand the judgment intended to be rendered against his client and that he inadvertently and erroneously approved the judgment as journalized.
We also understand appellant has acquiesced in the alimony judgment by making payments thereon in February and March of 1950. In view of the entire record, including the adverse ruling of the trial court on appellant’s instant motion to vacate the alimony judgment, it is not clear the nunc pro tunc order properly reflects the judgment intended. In fact from the entire record now before us it appears the trial judge intended to render the judgment reflected by the original journal entry. In any event in case of serious doubt on that subject the ruling of the trial court will not be reversed. (French v. French, supra, p. 82.)
From what has been said it must not be inferred the nunc pro tunc order, if permitted to stand, would contravene the provisions of G. S. 1949, 60-1511. That question, however, is not properly here for review until it is first established the nunc pro tunc order reflected the judgment actually intended. What we are concluding is that the instant judgment denying the motion to vacate the alimony judgment as originally journalized will not be disturbed on the basis of the record before us.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Defendants, a brother and sister, appeal from a judgment rendered against each of them for actual and punitive, damages in an action instituted by a tenant of farm land.
The amended petition of Marvin Will, in substance, alleged: He was a tenant under an oral lease from August, 1947, to August, 1949, of a forty-acre tract of land in Morris county which was rented by the owner, Margaret Hughes; on or about July 5, 1949, James Hughes, a duly authorized agent of the defendant, Margaret Hughes, wrongfully entered, broke in upon and interrupted the quietude of his possession and directed the harvesting of wheat being grown on the land; James Hughes maliciously and oppressively refused to allow him to enter the premises; he motored to Council Grove and returned with the sheriff but was unsuccessful in his attempt to gain peaceful access to the property for himself, his crew and equipment; he was damaged in the sum of $129.36, the fair value of his portion of the crop severed and carried away, in the sum of $100 for loss of one day’s use of plaintiff’s combine and was entitled to $2,500 exemplary damages and the costs of the action.
Defendants’ verified answer admitted the plaintiff’s tenancy. It specifically denied James was the duly authorized agent of Margaret and that Margaret did not herself or through any agent wrongfully enter upon the premises or interrupt plaintiff’s quiet possession in an attempt to harvest his crop. The answer further alleged no agency existed between Margaret and James and that James was charged with the sole custody and control of the property.
Plaintiff’s reply denied that there was no agency between Margaret and James and that James was charged with the sole custody and control of the property.
Upon the issues thus joined the action was tried and the jury returned a general verdict against each of the defendants as follows:
“For Actual Damages $179.36
“For Punitive Damages $500.00
“Total, $679.36”
The defendants appealed. Their common and their separate contentions of error will be stated later under separate headings.
The defendant James had not demurred to plaintiff’s evidence but a demurrer was interposed on Margaret’s behalf. The grounds thereof, in substance, were the evidence failed to show she was plaintiff’s landlord and that although it disclosed she was the owner of the property it failed to show she exercised control over the property.
We thus start with defendants’ admission Margaret was the owner of the leased land. A few other factors may be disposed of without a lengthy narrative of plaintiff’s testimony. Defendants’ contention that plaintiff’s evidence showed Margaret exercised no control over the land is too broad. The evidence disclosed no disputes of any kind or character over the tenancy covering the years 1948 and 1949 ever arose except the dispute here involved concerning the alleged unlawful cutting of ten acres of wheat on Margaret’s land by James in 1949. All other divisions of grain over the entire two year period were made entirely between the plaintiff and Margaret by the delivery of Margaret’s share of the grain to the elevator she indicated, the delivery of plaintiff’s share to the elevator of his choice and amicable settlements between them. Whether Margaret was involved in the alleged unlawful conduct of James in 1949 will be considered later.
It was defendants’ theory that James had rented the land from Margaret and that James was plaintiff’s landlord. Defendants’ testimony supported that theory but on this demurrer the trial court was concerned only with plaintiff’s testimony.
The well established rule is that on demurrer courts consider only testimony favorable to the party adducing it and accept it as true without regard to conflict in the testimony on direct and cross-examination. (Burgin v. Newman, 160 Kan. 592, 593, 164 P. 2d 119.)
We need not unduly labor the question whether Margaret was plaintiff’s landlord. The testimony was ample that she was. It is true that in 1947 the plaintiff first contacted James and inquired of him whether he had some land to rent and was advised he did not but that his sister Margaret might have. James later contacted the plaintiff and, in effect, advised him that he could rent the forty acres in question. James did not tell plaintiff he already had a lease from Margaret on the land. Plaintiff farmed it in 1948 and all crop settlements for that year were made with Margaret. After the 1948 harvest plaintiff inquired of Margaret whether he might have the land for the year 1949 and she informed him that she knew of no reason why he should not have it. These facts are all admitted by Margaret’s demurrer. We are, therefore, forced to conclude Margaret’s demurrer on the ground plaintiff’s evidence did not disclose she was plaintiff’s landlord was untenable and was properly overruled.
We now shall consider plaintiff’s evidence touching the facts and circumstances surrounding the alleged unlawful interference with his harvesting of the 1949 crop. That testimony, in substance, was:
He had also rented ten additional acres of ground from James for the year 1949; in addition thereto he rented eighty acres just across the road and a quarter of a mile north from a man by the name of Parkins; he had rented the Parkins’ land in 1948; neither Margaret nor James made any complaint about the manner in which he had farmed the forty acres in 1948; the 1949 wheat crop on Margaret’s forty acres started to mature about the first part of July; on June 30 he started cutting the ten acres he had rented from James; one-third of that wheat belonged to James and two-thirds to him; from Margaret’s land Margaret received two-fifths and he received three-fifths of the crop; he started cutting wheat about the same time other farmers in the neighborhood were cutting theirs, although some of them cut even later than he did; after cutting the wheat on the James’ land he started cutting on Margaret’s; there were several draws running through Margaret’s land and there were a lot of weeds in the low places on her land as well as in low places on other lands; that was true about the Parkins’ land; he, therefore, cut the wheat in the draws first in order to try to save as much of it as possible; he finished cutting the low weedy portion of Margaret’s land on July 1 and 2; the wheat on Margaret’s land which he did not cut at that time was not in immediate danger of being lost by reason of the weeds; he then moved his equipment onto the Parkins’ land and cut wheat in the low places there during the latter part of July 2 and on July 3, 4, and 5; at about 3:30 p. m. on July 5 and after he had cut most of the weedy portion on the Parkins’ land James came to see him and inquired whether he was going to finish the entire Parkins’ field at that time; he advised James he was not but that he did want to make about six or seven additional rounds in the low weedy portion of the draw and that he would then return to Margaret’s land in thirty or forty-five minutes after they had eaten their lunch; he asked James why he was inquiring and James said, “Well, I have just decided if you want that wheat you are going to follow me right over there or you will not have any wheat when you get over there”; he told James that was his wheat, to stay out of there and that he would see their share of the wheat got into the elevator the same as his own; his brother, Walter, took a load of wheat from the Parkins’ land to town and talked to Margaret; Walter returned to the Parkins’ land; they moved over to Margaret’s land and found two twelve foot combines cutting the wheat; he asked James to quit cutting and James replied that he (plaintiff) did not want his wheat and he (James) was cutting it for him and that he (plaintiff) had nothing to say about it.
Plaintiff’s own evidence, in substance, further disclosed:
He went to Mr. Kandt, who was cutting the wheat, and asked him to stop operations for the reason that he desired to cut his own wheat; Kandt replied he did not know it belonged to him, but understood it belonged to James, who had hired and paid him to cut ten acres and that they were forced to cut that much; he then went to the home of his folks about a mile away and called the sheriff; he asked James and Kandt to leave everything just as it was until he and the sheriff returned; when he returned alone the cutting had been finished; the truck driver inquired what he wanted done with the wheat; he advised him to leave it until the sheriff arrived and that they would then divide it correctly; the wheat was nevertheless hauled off the place before the sheriff arrived; he had previously cut about half the wheat on this forty acres; it averaged ten to ten and a half bushels per acre and that included the weedy portions of the field; on the next day he finished cutting the remainder of the wheat; James and his crew took approximately 105 bushels of wheat off the place; James and his men had started cutting it about 4:00 p. m. and finished the ten acres in about an. hour or an hour and a half; he never received any portion of his share of the wheat which they removed; the wheat was worth about $1.99 per bushel; neither Margaret nor anyone else ever previously informed him that James had any authority to cut the wheat; the morning of the trial was the first time he had ever heard that James claimed any right to the wheat; he had always deposited Margaret’s share of the wheat to her credit at the elevator and never to the credit of James; he had never lost any land because of inattention or lack of saving a crop; he cut a portion of Margaret’s crop and all of Parkin’s crop in order to save the wheat in each of the fields; he helped his own brother finish cutting his wheat on a neighboring place even later than he had cut on Margaret’s and Parkins’ places; other neighbors were cutting five or six days later than he did; prior to harvesting the 1949 wheat he asked Margaret where she wanted her share delivered and she advised she had made arrangements with the White Grain Company for her wheat; he wanted his own delivered to the Continental; Margaret directed him to divide the wheat in the best way possible and to bring her the tickets when he was through harvesting and they would then settle; he delivered Margaret’s share of the wheat which he cut as she directed and received grain tickets therefor; his combine was an eight-foot combine and it would, therefore, take longer for him to harvest the wheat than the larger combines James used; he went to Margaret to get a settlement a few days after harvesting but never was able to get a settlement from her; she did not direct him to see James about the settlement; he leased the combine he used from his father; by reason of the conduct of James he was unable to get into the field and lost the use of two men, a tractor and a combine for the time it would have taken to cut the ten acres which James cut; he did not remember exactly how his attorney had estimated that damage when he drew the petition; James paid $38.64 for having the wheat combined; they did it in about an hour and a half; that would have averaged about $25 an hour; he lost about four hours time for himself, his men and equipment.
The testimony of Walter Will, plaintiff’s brother, corroborated that of the plaintiff relative to the statement James made to the plaintiff on the Parkins’ place and plaintiff’s answer to James. The brother further, in substance, testified:
When he took the load of wheat to town from Parkins’ place, just after James had been there, he went to see Margaret; at plaintiff’s request he asked Margaret whether James had a right to go onto her place and cut the wheat; Margaret did not want to discuss the matter; she said she did not know what to do; when he told her that plaintiff had called the sheriff she said she didn’t like for them to get into any trouble and that she didn’t want any trouble; Margaret didn’t say whether James represented her as the landlord; she didn’t indicate whether she knew James was in the field before he (Walter) told her; she only said she would like to have her wheat saved; he told her that he and the plaintiff would be ready to go over to her place and start cutting in thirty or forty-five minutes; she didn’t reply to that statement but turned around and went back to her work; he and his brother were ready to leave the Parkins’ place within fifteen or thirty minutes after James left there; in going to the different fields they were trying to get all of the weediest wheat first; they finished cutting the weedy portions of their wheat in the different fields sooner than many of the neighbors.
The material portion of Parkins’ testimony was that he had rented land to the plaintiff, that plaintiff was a better than average farmer and his work had been satisfactory.
Ted Meyer, who had cut the wheat at James’ direction, testified there was no shattering of the wheat at the time but that it might have shattered some in the event of rain.
Dick White, operator of the White Grain Company testified, in substance:
On July 5 he received seventy-two bushels of wheat which was ordered stored by the driver to the sole credit of Margaret and that he later made settlement with her for it; he did not remember the driver and did not know from what land the wheat came; the driver told him to credit it to Margaret; there seemed to be some doubt about it so he called Margaret and she said she knew absolutely nothing about the trouble or anything about it.
What about the subject of damages? If plaintiff’s evidence disclosed he was damaged in any sum by Margaret’s conduct her demurrer was properly overruled. Her demurrer admits she has never accounted to the plaintiff for his share of the wheat taken from the land by James. That, without damage due to the loss of use of the combine, is sufficient to withstand the demurrer. It will be ob served the demurrer made no distinction between actual and punitive damages but was general in character. It follows it was properly overruled.
This Brings us to the question whether the verdict of the jury can be disturbed with respect to actual or exemplary damages. We shall first consider the verdict for actual damages against both defendants. The evidence relative to the amount of wheat removed was highly conflicting. It was the jury’s province to resolve the conflict. Defendants argue only seventy-two bushels thereof were credited to Margaret’s account at the elevator. We are not concerned here with how much wheat James had credited to Margaret’s account at the elevator but with how much wheat he removed from the land. Plaintiff’s evidence discloses Margaret did not account for any portion of the wheat which James removed. The jury had a right to find ten acres of wheat were combined; that it averaged ten or ten and one-half bushels per acre; that it was worth $1.99 per bushel. Three fifths of 100 bushels at the above price amounts to $119.40. That amount subtracted from the verdict of actual damages in the sum of $179.36 leaves $59.96 for acual damages claimed for plaintiff’s loss of the use of the combine and his men. If plaintiff is credited on the basis of ten and one-half bushels per acre he would be entitled to another credit of three bushels or about $5.97. This would reduce the damages allowed for loss of use of the combine to that extent or to about $53.99.
Although the evidence touching damages for the last item was not too clear, as indicated by a previous review of plaintiff’s evidence, and although it is not entirely clear how the jury arrived at the exact figure of $179.36 for total actual damages we would have difficulty •disturbing that part of the verdict. This was not a case in which the jury was compelled to return a verdict for no damages or a verdict for the exact amount alleged in plaintiff’s petition. The verdict was within the range of plaintiff’s evidence. Under such circumstances it ordinarily will not be disturbed. (Young v. Irwin, 70 Kan. 796, 79 Pac. 678; Sheftel v. Kansas City Public Service Co., 137 Kan. 79, 81, 19 P. 2d 434; Claggett v. Phillips Petroleum Co., 150 Kan. 191, 193, 92 P. 2d 52; Stafford v. Fidelity Hail Ins. Co., 162 Kan. 75, 76, 173 P. 2d 1022.) It, therefore, appears the verdict for actual damages should stand.
Defendants contended below and argue now James and not Margaret was plaintiff’s landlord and that G. S. 1949, 67-525 was applicable to the issues as joined. The court accordingly instructed the jury that statute, insofar as applicable, provides:
“When any . . . rent is payable in a share or certain proportion of the crop, the lessor shall be deemed the owner of such share or proportion, and may, if the tenant refuse to deliver him such share or proportion, enter upon the land and take possession of the same. . . .”
It is true a landlord has an interest in a crop before it matures when rent is payable in shares. Absent an agreement to the contrary that interest ordinarily becomes complete at the maturity of the crop. (Wiehl v. Winslow, 118 Kan. 147, 149, 233 Pac. 802.) Although there is not complete harmony on the subject the usual view is that under such a lease the landlord has no actual title to any part of the crop until its division. (Wyandt v. Merrill, 107 Kan. 661, 663, 193 Pac. 366.)
Let us, however, assume for the moment, without deciding, that defendants were entitled to the instruction given and that either of them, if found to be the landlord, had a right to protect the landlord’s share of the crop by harvesting it in the event the tenant negligently failed to do so. How can that assumption aid either of these defendants on appeal?
Whether the tenant was negligent in protecting the crop, irrespective of which one of the defendants was the landlord, was a question for the jury which it resolved in the tenant’s favor. A general verdict is one by which a jury pronounces generally on all issues of fact submitted to it for determination and on review this court must assume the jury resolved all controverted issues of fact in favor of the prevailing party. (Phillips v. Hartford Accident & I. Co., 157 Kan. 581, 142 P. 2d 704.) We must, therefore, assume the jury concluded neither Margaret nor James had a right to interfere with the tenant’s harvesting of the grain.
But was Margaret responsible for such interference? There was no evidence she authorized the acts of James before they were committed. She did, however, retain the benefits of the wrongful act. According to plaintiff’s evidence she never accounted to him for any of the wheat James removed.
In 2 C. J. S., Agency, § 34a, the rule is stated thus:
“Ratification in agency is an adoption or confirmation by one person of an act performed on his behalf by another without authority. The substance of the doctrine is confirmation after conduct, amounting to a substitute for prior authority.”
To the same effect is the statement in 2 Am. Jur., Agency, § 232, and in other authorities.
In Flitch v. Boyle, 149 Kan. 834, 89 P. 2d 909, it was held:
“When a principal, expressly or implied, elects to ratify an unauthorized act, he must, so far as it is entire, ratify the whole of it and he will not be permitted to accept its benefits and reject its burdens.” (Syl. ¶ 1.)
See, also, Watson v. Woodruff, 154 Kan. 61, 114 P. 2d 864. The ratification by the principal of an unauthorized act of his agent is equivalent to an original grant of authority. (Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074.) Upon acquiring knowledge of the agent’s unauthorized act the principal should promptly repudiate the act. Otherwise, it will be presumed he has ratified and affirmed the act. (Isaacs v. Motor Co., 108 Kan. 17, 193 Pac. 1081.) In all cases he must repudiate the unauthorized act at least within a reasonable time. (Hartwell v. Manufacturing Co., 78 Kan. 259, 97 Pac. 432.)
The only remaining questions are whether the jury was justified in awarding a verdict for exemplary damages against the defendants and, if so, whether that verdict was excessive.
Defendants contend there was no basis for any verdict for exemplary damages against either of them. They lean heavily upon statements contained in the opinion in Motor Equipment Co., v. McLaughlin, 156 Kan. 258, 133 P. 2d 149, and in a portion of the syllabus which reads:
“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.” (Syl. ¶ 10.)
The correctness of the rule is not disputed by the plaintiff. The problem here is the proper application of the rule to the instant facts. It was, of course, the duty of the jury to determine the credibility of the testimony of the various witnesses and to weigh it. The jury had the responsibility of determining whether there was a reasonable excuse or justification for interference with the harvesting as conducted by plaintiff or whether the acts of James and his demeanor were vindictive or malicious. Surely the jury, and the trial court in approving the verdict, had a much better opportunity to determine those factors than this court has in examining a cold printed record. Of course, if on appellate review this court were permitted to adopt defendants’ version of the over-all transaction we might agree with them but we are not at liberty to substitute our judgment for that of the jury. We cannot say, as a matter of law, that the acts of James were not vindictive or malicious.
Can the verdict for exemplary damages against Margaret be sustained? We previously indicated she accepted the benefits of the wrongful and vindictive conduct of James as her agent and that having done so she cannot escape the burdens or responsibilities thereof for actual damages. Margaret, according to plaintiff’s evidence, did not repudiate the conduct of James at any time after she learned of it but on the contrary retained the benefits thereof. Having done so she ratified his acts. A ratification on the part of the principal or master of the act of his agent or servant may consist in receiving and retaining the benefits thereof. (25 C. J. S., Damages, § 125 (2), p. 736; 15 Am. Jur., Damages, § 289; Farvour v. Geltis, 91 C. A. 2d 603, 205 P. 2d 424; Kilpatrick v. Haley, 66 F. 133.)
The court instructed the jury on the subject of ratification without objection by defendants. The instruction on the subject became a part of the law of the case and defendants cannot complain that the court instructed on that subject.
Was the verdict for exemplary damages excessive? It is difficult to lay down a precise rule by which to test the question of an excessive verdict for punitive or exemplary damages. (Motor Equipment Co. v. McLaughlin, supra, p. 273.) If the verdict appears to be grossly excessive it may be reduced in the same manner as excessive verdicts for actual damages. (Motor Equipment Co. v. McLaughlin, supra, p. 273.)
The law establishes no fixed ratio by which the excessiveness of exemplary damages to the actual damages allowed is to be measured although the actual damage is sometimes considered. In assessing exemplary damages the nature, extent and enormity of the wrong, the intent of the party committing it, and, generally all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be considered. (15 Am. Jur., Damages, § 298.) Under all the attending circumstances in this case we think the verdict for exemplary damages should be reduced by $250. Plaintiff is, therefore, given the option of accepting that amount within ten days from the date of this decision. If plaintiff exercises that option as directed the judgment so reduced is affirmed. Failing to exercise the option a new trial on the issues generally is directed.
Defendants also complain concerning certain instructions. It appears they were given full opportunity to examine them and to object thereto prior to the submission of the case to the jury but failed to do so. It is possible certain instructions might have been somewhat fuller but we discern no reversible error in them. No request was made for modification, clarification or amplification thereof. Under these circumstances it was not error to refuse a new trial on that ground. (Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194.)
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The opinion of the court was delivered by
Wedell, J.:
This was a workmen’s compensation case. The workman recovered an award and the employer appeals.
The material facts are quite simple. In substance, they are:
The employer was the Victory Cab Company; it operated a fleet of taxicabs in the city of Kansas City and its surrounding territory; in connection with its taxicab business it operated a shop for the repair and servicing of its taxicabs, the company’s trucks, the cars of its officers and cars of others to whom the company had liability for damages; it did no repair work on any other cars; the shop was equipped with power machinery and other tools and devises suitable for the purpose mentioned; it operated a spray gun for painting cars; the mechanics in the repair shop also went out to service taxicabs in case they ran out of gasoline or needed repairs while on trips; the work of the mechanics, of which claimant was one, was to keep the taxicabs in operating condition; the taxicab company had no fixed routes or fixed termini over which it operated; it merely transported passengers from and to places designated by them; claimant was injured during the early morning of December 21,1950, while on a trip to deliver gasoline to a taxicab that needed servicing; after stopping his truck on the opposite side of the street from which the cab was located he was struck in the street by an approaching motor car and severely injured.
Exclusive of facts pertaining to claimant’s injuries, not involved on appeal, the district court found:
“The court finds the parties are governed by the Kansas Workmen’s Compensation Act; that there were five or more employed in the business of respondent, employed within the state of Kansas continuously for more than one month at the time of the accident; that under G. S. 1949, 44-508 (b) of the Workmen’s Compensation Law that machine or repair shops are specifically listed as coming under the Act, under the definition of ‘factory’; that under Section 44-505 that said Act applies to the employer’s trade or business in a ‘factory’; that Section 44-542 prescribes that every employer entitled to come within the provisions of the Act shall be presumed to have done so and that Section 44-507 states the action shall apply to employers by whom five or more workmen have been employed within the State of Kansas continuously for more than one month at the time of the accident; that the repair shop in which claimant was employed at the time of the accident was a part of the business and helpful in producing a profit and gain on the whole for respondent.’’
Respondent, appellant, is the Victory Cab Company. We have held a taxicab company operating a fleet of cabs is not covered by the words “motor transportation line” as used in the workmen’s compensation act and, therefore, is not within the act. (Tuggle v. Parker, 159 Kan. 572, 156 P. 2d 533.)
One of the above quoted findings of the district court is G. S. 1949, 44-542 prescribes “that every employer entitled to come within the provisions of the Act shall be presumed to have done so.” (Our italics.) We are obliged to differ with the district court on that point. We concede a statement to that effect may be found in perhaps a few of our opinions including the one in Kirkpatrick v. Teamans Motor Co., 143 Kan. 510, 54 P. 2d 960, relied on by appellee. This is not a correct statement of the law and it is overruled. ' In the Tuggle case, supra, we repeated what frequently has been said as follows:
“It is well established, however, by our authorities that unless a business is named in the act it is not covered by the workmen’s compensation act. See Southern Surety Co. v. Parsons, 132 Kan. 355, 295 Pac. 727; also Thayer v. Bowler, 144 Kan. 136, 58 P. 2d 59.” (p. 573.)
In G. S. 1949, 44-505 the legislature expressly listed the trades or businesses it regarded as constituting hazardous employments. Such employments were thereby automatically placed under the act irrespective of the wishes of the employer. The same statute further expressly provides employers not within the purview of the act may elect to come under it by filing a written election to do so. The same statute also provides the employee, of any employer who voluntarily elects to come within the act, shall be included under the act unless such employee elects not to come within it as provided by G. S. 1949, 44-543. G. S. 1949, 44-542 provides:
“Every employer entitled to come within the provisions of this act, as defined and provided by this act, shall be presumed to have done so, except such employers privileged to elect to come within the provisions of this act, as hereinbefore provided, unless such employer shall file with the commissioner a written statement that he elects not to accept hereunder, and thereafter any such employer desiring to change his election shall only do so by filing a written declaration thereof with the commissioner. Notice of such election shall forthwith be posted by such employer in conspicuous places in and about his place of business.”
The above quoted section is not happily phrased and confusion at times has arisen concerning its proper interpretation. Its meaning, however, is no longer open to debate. It has been held to mean employers in nonhazardous trades or businesses, that is, those not expressly listed as hazardous under the act, are not subject to its provisions unless they affirmatively elect to operate under it. Their election is not compulsory but optional. If the election were compulsory it would be futile to provide for an election. By the same token if their election to operate under the act is presumed it was a useless thing to require an election. Absent an affirmative election they are not amenable to the act. (Railway Co. v. Fuller, 105 Kan. 608, 612-614, 186 Pac. 127; Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 295 Pac. 727; Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 575-577, 21 P. 2d 337; Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 279-280, 65 P. 2d 284; Crawford v. Atchison, Topeka & S. F. Rly. Co., 166 Kan. 163, 199 P. 2d 796).
Here there was no such election by appellant. Manifestly the act can have no effect on parties not operating under it. (Echord v. Rush, 124 Kan. 521, 261 Pac. 820.) It follows the decision cannot be affirmed on the theory appellant might have elected to bring itself within the purview of the act and that it, therefore, must be presumed it has done so. If that were the rule all nonhazardous employments would be under the act unless an election were made not to be governed by it. Furthermore under such a rule literally thousands of employees in nonhazardous trades or businesses automatically would be deprived of their right to maintain a common law action for damages against their employers for injuries sustained as a result of the employer’s negligence. Such a result would constitute a direct violation of the express terms of G. S. 1949, 44-505 and also of G. S. 1949,44-543.
But what about the liability of appellant under the compensation act for workmen employed in the repair shop? An employer may have various trades or businesses, some of which are within the act and others which are not. (Shrout v. Lewis, 147 Kan. 592, 77 P. 2d 973; Davis v. Julian, 152 Kan. 749, 107 P. 2d 745.)
G. S. 1949, 44-508 (b) expressly includes a “machine or repair shop” under the definition of a factory and G. S. 1949, 44-505 lists a factory as a hazardous employment. Appellant, however, reminds us a factory is defined in G. S. 1949, 44-508 (b) as a place where, among other things, articles are repaired “for the purpose of trade or gain of the business carried on therein.” (Our italics.) It argues the evidence discloses the repair shop was not operated for the purpose of trade or gain “therein” but was merely an adjunct of the taxicab business. The repair shop was used to repair taxicabs, appellant’s trucks, cars belonging to officers of the appellant company and also motor vehicles owned by others to whom appellant had incurred damage liability. We think the operation of the repair shop clearly inured to the benefit and gain of appellant. By saving the expense of having the work on motor vehicles done in other shops appellant profited. It gained to that extent. It seems to us it would constitute too technical a construction of the intent and spirit of the act to say the repair shop was not operated for gain merely because it was not separately operated for gain.
Appellant strenously argues appellee’s evidence fails to disclose there were five or more workmen employed continuously in the repair shop for more than one month at the time of claimant’s injury, that appellant’s evidence positively shows there were not five such employees. Reference to one of the court’s findings discloses the court failed to make a finding on that important issue. It merely found there were “five or more employed in the business of respondent.” Numerous nonhazardous trades or businesses have five or many more workmen employed but manifestly would not be within the act merely by reason of the fact they also might maintain a repair shop in which they had fewer than five workmen employed. Our workmen’s compensation act is clear on that point. G. S. 1949, 44-507 expressly provides:
“It is hereby determined that the necessity for this law and the reason for its enactment exists only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five (5) or more workmen have been employed within the state of Kansas continuously for more than one month at the time of the accident: Provided, however, That employers having less than five (5) workmen may elect to come within the provisions' of this act, in which case his employees shall be included herein, as hereinafter provided: And provided further, That this act shall apply to mines and building work without regard to the number of workmen employed or the period of time employed.” (Our italics.)
As previously indicated appellant did not elect to come under the act. It follows it was necessary that five or more workmen be employed in the repair shop, the hazardous part of appellant’s employment, continuously for more than one month at the time of the accident. The burden of establishing that fact, as any other fact essential to recovery, of course, rests on the claimant workman.
Counsel for the parties agree four mechanics were so employed in the repair shop on the combined day and night shifts but they disagee sharply whether the evidence discloses a fifth workman was continuously employed therein and for the period required by the act. It was the duty of the court to make a specific finding on that essential point. This court has no jurisdiction or power to make original findings in compensation cases. It only has power to determine whether there is substantial competent testimony to support a finding, or findings, when made by the district court. In addition to the findings of the court, previously set forth, the journal entry also discloses the following:
“The court further finds and adopts all the findings of the commissioner of Workmen’s Compensation in his award of June 26, 1951, not inconsistent herewith.”
The findings of the commissioner disclose he erroneously believed office and administrative employees of the taxicab business could be counted in determining whether five or more workmen were employed. Neither clerical employees of the taxicab company nor mere administrative officers of the latter, who do not have supervision or control over the work in the repair shop, may be counted in determining whether five persons are employed in the hazardous work in the repair shop. (Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43; Griswold v. City of Wichita, 99 Kan. 502, 503, 162 Pac. 276; Stover v. Davis, 110 Kan. 808, 812, 205 Pac. 605; McCormick v. Kansas City, 127 Kan. 255, 260-261, 273 Pac. 471; Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 416, 283 Pac. 58.)
Counsel for appellee again rely on the Kirkpatrick case, supra, in which they also prevailed and in which they contend only one workman was employed in the garage of the respondent Ford dealer. The opinion does not disclose that fact. Counsel for appellee, being familiar with the record in such case, direct our attention to their counter abstract filed in such case which, as they contend, does disclose only one workman was employed in respondent’s garage. The opinion, however, clearly indicates appellant there raised three issues on appeal and the opinion does not indicate this point was one of them. At any rate the case was not decided on that point. Had it been we would have no hesitancy in overruling it.
Counsel for appellee also rely on McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471, and direct attention to a Washington case therein cited in which only one carpenter was employed by a department store to make shelving, alterations and repairs, his work being done in a repair shop containing tools and machinery operated by an electric motor. A reading of that opinion discloses the Washington statute differs somewhat from ours and further discloses the case was not cited for the purpose of laying down a rule that a merchant, or any other person operating a nonhazardous trade or business, employing only one person in a repair shop is, therefore, brought under the compensation act. In fact, that opinion definitely repudiates such a rule and affirmatively shows it does not obtain in this state. (See p. 260-261.)
We know of no case in which this court has cited the Kirkpatrick, the McCormick or any other case as authority for the proposition that fewer than five workmen continuously employed in a hazardous employment and for the time required by the statute are sufficient to bring the trade or business within the act, absent an election to be bound by the act without regard to the number of workmen. The cases previously cited herein are to the contrary. Of course, an employer may be made amenable to the provisions of the act by electing to come within it although he employs fewer than five workmen. (G. S. 1949, 44-507; Crawford v. Atchison, Topeka & S. F. Rly. Co., supra, p. 165.)
We need not prolong the opinion. The case must be, and it is, remanded to the district court with directions to make a finding, on the record before it, whether five or more workmen were continuously employed in the work of the repair shop for more than one month at the time of the accident. | [
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The opinion of the court was delivered by
Wertz, J.:
This action brought by appellant in the district court of Barton county was for an injunction against enforcement of Ordinance No. 1286 of the defendant city. The district court denied the injunction, and this appeal was taken from such order.
Plaintiff (appellant here) is a Kansas public utility corporation and defendants (appellees here) are the City of Great Bend and the officers of that city, and for the purpose of brevity the appellant will hereinafter be referred to as “the utility” and the appellees as “the city.”
The utility is engaged in distributing and supplying natural gas to a number of cities wholly within the state of Kansas including the City of Great Bend, pursuant to a certificate of convenience and authority granted by the Corporation Commission of the State of Kansas. The utility has installed its mains and services in the city pursuant to a franchise ordinance granted by the city many years ago, and until the expiration of that franchise in January, 1949, supplied natural gas to the city under that franchise. Since its expiration the utility has continued to furnish gas to the city without a new franchise.
Since January, 1949, the utility has presented a new franchise to the governing body of the city and requested its passage on the basis of the term being twenty years and, in lieu of all city occupation and license fees, that a consideration be paid to the city amounting to two percent on a gross revenue basis from the sale of domestic and commercial gas in the city, which would amount to approximately $5,000 annually. The governing body of the city has refused to pass the submitted franchise and has countered with submission of a ten-year franchise on substantially the same terms, which the utility in turn has refused to accept, the situation thereby becoming a stalemate.
Subsequent thereto and on December 9, 1950, the city published Ordinance No. 1286 entitled “An ordinance regulating the use of the city streets and alleys by businesses furnishing natural gas for light, heat and power purposes to the inhabitants of the city . . . for pay, by means of pipe lines laid in the public streets and alleys of the city . . . providing for a license, the collection of a license fee, and providing penalties for the violation thereof.” Under terms of the ordinance, the city made it unlawful for the utility to carry on the business of furnishing natural gas for light, heat and power purposes to the citizens of the city for pay by means of pipe laid in the public streets and alleys unless a license fee of $10,000 per year was paid by the utility; as a condition precedent to carrying on such business the utility is required to pay $5,000 of the license fee on January 1, 1951, and it is further provided that if the utility should fail and refuse to pay the license fee and continue to distribute natural gas to the inhabitants of the city without paying the license fee, then it shall be deemed guilty of a misde meanor and fined not less than $2 per day nor more than $100 per day for each day that said business is conducted without the license fee having been paid, and that each day shall constitute a separate offense.
This brings us to this question presented by the parties: Has a city of the second class such as appellee the authority under G. S. 1949, 12-1650 as amended by Laws of 1951, chapter 139, to classify and license for the purpose of regulation or revenue a public utility business operated within the limits of such city and servicing other municipalities under a certificate of convenience and authority from the Corporation Commission and which business has been specifically and exclusively reserved to the state of Kansas as an object of regulation by the State Corporation Commission and as an object of taxation through the Commission of Revenue and Taxation?
As authority for publication of the mentioned ordinance, the city relies on G. S. 1949, 12-1650 as amended, which in pertinent part reads as follows:
“That the governing body of any city of the second or third class shall have the power by ordinance to classify and license for purpose of regulation or revenue any and all occupations, businesses or professions pursued, conducted or carried on within its corporate limits which are not prohibited by law or which are not or shall not be specifically or exclusively reserved to the state or county as objects of taxation or regulation, subject to the constitution and laws of this state, and shall fix the amount of all license fees and provide for their collection and prescribe penalties for the nonpayment thereof. . . .” (Italics supplied.)
The utility contends that it is completely outside the scope of the mentioned statute and immune from payment of license fees and other regulatory action by the city under Ordinance No. 1286 for the reason that it is specifically and exclusively reserved to the state as an object of taxation and regulation under the Public Utilities Act, G. S. 1949, chapter 66.
G. S. 1949, 66-101 provides that the State Corporation Commission is given full authority to supervise and control the public utilities doing business in Kansas and empowered to do all things necessary and convenient for the exercise of such power. G. S. 1949, 66-104 provides that the term “public utility” shall be construed to mean every corporation that now or hereafter may own, control, operate or manage any equipment, plant, or the conveyance of oil and gas through pipe lines in or through any part of the state.
G. S. 1949, 66-117 provides that when any public utility governed by the provisions of the Act shall decide to make a change in any rate, joint rate or classification, schedule of changes, in any rule, regulation or practice pertaining to the service or rates for any such utility or common carrier, such utility shall file with the Corporation Commission a schedule showing the change desired to be made and put in force by such utility, and no change shall be made in any rate, schedule of changes, or any rule or regulation pertaining to rates without the consent of the Commission. G. S. 1949, 66-141 provides that all grants of power, authority and jurisdiction made to the Commission shall be liberally construed and all incidental powers necessary to carry into effect the provisions of the Act are exclusively granted to and conferred upon the Commission.
Utilities serving municipalities are not only subject to the above regulatory authority of the State Corporation Commission but their services, facilities, expenditures and contracts as well as the business policies established by their rules and regulations are subject to the authority of such Commission. In the case of gas utilities, the authority extends even to details respecting the installation of regulatory and pressure gauges and so forth. Detailed annual reports are required within the discretion of the Commission, which also has authority to and has prescribed uniform systems of accounts to be maintained by utility companies in the operation of their business, and many other regulations and restrictions as are set forth in chapter 66 of the laws of Kansas. In no other field of business is the authority to regulate so completely reserved to and exercised by the state as in the case of public utilities. When the legislature enacted G. S. 1949, 12-1650, with minor amendments made by chapter 139, laws 1951, it must have had in mind some type of business which would fall within the exceptions specified therein. Otherwise there would have been no possible reason for making the exceptions contained therein.
Public utilities such as appellant utility are subjected by state law to the utmost regulation and to assessment for taxation by the state itself through its own statewide agencies. It is certainly a reasonable presumption to believe that the legislature had public utilities specifically in mind as the first group to be freed of confusing and conflicting local regulation and assessment. Utilities thus represent the prime example of businesses over which the state has reserved to itself the exclusive jurisdiction of regulation and taxation. It is apparent that the business of appellant utility has been exclusively reserved to the state of Kansas as an object of regulation through the state’s instrumentality, the Corporation Commission, and that appellees are without authority under section 12-1650 as amended, due to the exceptions therein contained, to license the appellant utility and to levy a license fee by ordinance against its operation in the city. This court on numerous occasions has sustained the jurisdiction of the Corporation Commission to regulate the business of a public utility. In The State, ex rel., v. Water Co., 92 Kan. 227, 140 Pac. 103, we held that under the Public Utilities Act (chapter 238, Laws 1911), the Commission is given full power, authority and jurisdiction to supervise and control public utilities doing business in Kansas and was empowered to do all things necessary and convenient for the exercise of such power. Again in Street Lighting Co. v. Utilities Commission, 101 Kan. 774, 169 Pac. 205, we stated that this court will always extend a very liberal interpretation of the public utilities act so as to give the Public Utilities Commission effective use of its lawful powers over' the utilities companies lawfully subject to its control.
Both the city and the State Corporation Commission are creatures of the legislature. Neither has any inherent power or authority except such as is expressly granted by the state. The legislature has the power to regulate the authority of either in any manner in which it deems proper, and it exercised that power in passing G. S. 1949, 12-1650 as amended, to prohibit a city from licensing and levying a license fee against a business which the state had made an object of regulation by the State Corporation Commission. The state creates governmental officers and agencies, clothes them with authority, alters that authority, resumes it and imposes it on other functionaries as experience may suggest. City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 207 Pac. 813; Eastern Shore P. S. Co. v. Town of Seaford, 23 Del. Ch. 199, 2 Atl. 2d 265; The State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639; City of Parsons v. Water Supply and Power Co., 104 Kan. 294, 178 Pac. 438.
In adopting the Public Utilities Act, G. S. 1949, chapter 66, the state reserved to itself the right to regulate every phase of the public utility business as hereinbefore related. In turn the utility companies are obligated to furnish an efficient service at a reasonable rate and may not change that rate without the consent of the Commission. Once a utility is vested with authority to enter upon the streets of a city and to exercise the privilege conferred upon it, the Commission may regulate service, prescribe rates and order continuance of service at such prescribed rates. City of Wilson v. Electric Light Co., 101 Kan. 425, 166 Pac. 512.
Sections 14-401 and 12-848, G. S. 1949, cited by the city, and relating to general powers of governing bodies of cities of the second class to have the care, management and control of a city, its streets, alleys, public grounds, and finances, are restricted and such granted authority may not be in conflict with the Constitution and state laws. In the instant case, such general law has been superseded by the Kansas Franchise Act.
The Kansas Franchise Act (G. S. 1949, 12-2001) provides the only method by which a city may grant to a public utility such as appellant herein the right to use the public streets in carrying on its private business. Pertinent parts of the Act follow:
“The governing body of any city may permit any person, firm or corporation to manufacture, sell and furnish artificial or natural gas ... to the inhabitants . . . and may grant to any person, firm, corporation or partnership the right to use the streets in the carrying on of any business which is not prohibited by law wherein said business is primarily conducted on the streets of any city of the state of Kansas, upon the express condition hereinafter imposed, and not otherwise, in this act to wit:” (Italics supplied).
It further provides that all contracts granting or giving any such priginal franchise right or privilege or extending, renewing or amending any existing grant, right, privilege or franchise shall be made by ordinance and not otherwise; and in the fifth paragraph, that no such grant, right, privilege or franchise shall ever be made to any person, firm, corporation or association unless it provides for adequate compensation or consideration therefor to be paid to such city. The seventh paragraph of the Act follows:
“All contracts, grants, rights, privileges or franchises for the use of the streets and alleys of such city, not herein mentioned, shall be governed by all the provisions of this act, and all amendments, extensions or enlargements of any contract, right, privilege or franchise previously granted to any person, firm or corporation for the use of the streets and alleys of such city shall be subject to all the conditions herein provided for in this act for the making of original grants and franchises. . . .”
It is apparent from the mentioned franchise act that it is a restriction upon the corporate powers of a municipality to grant to utilities the right to use the streets and other public property without first obtaining a franchise as therein provided. It is a protection for the utility to enable it to recapture its capital investment and grants a protection to the residents and local taxpayers that reasonable compensation will be paid by the utility to the municipality for such privilege. The Act is exclusive in its nature as to the manner and method by which a city may grant a right to a utility to use its streets and to receive compensation therefor. It is sufficient to say that strict compliance with the franchise law (G. S. 1949, 12-2001) is obligatory on both the utility and the city. While G. S. 1949,12-1650 grants to the city the power to license businesses by ordinance for purposes of regulation and revenue, such act must give way to the voice of the legislature in a specific act granting a right to public utilities and prescribing the manner and mode in which that right or privilege to the use of the streets may be granted by a city.
From the foregoing it is apparent that G. S. 1949, 12-1650, upon which the city relies for authority to pass and enforce city ordinance No. 1286 in question does not grant to the city the alternative provision of using such statute for granting to a utility the right of using the streets nor the right of the city to collect revenue for such privilege, circumventing the mandate of the legislature as announced in G. S. 1949, 12-2001. It therefore follows that the city ordinance (No. 1286) is invalid and beyond the corporate power of the city to enforce in the instant case.
Other questions argued by the parties to this appeal are not within the issues raised by the pleadings and the record fails to disclose that they were presented to the trial court; therefore they will not be decided here.
The judgment of the lower court is reversed with direction to permanently enjoin the city from enforcing or attempting to enforce the provisions of Ordinance No. 1286 as against the appellant in this action. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order sustaining a demurrer to an amended petition, as amended, in an action by the borrowers to recover alleged usurious interest paid to the lender, together with penalties, as provided by G. S. 1949,16-202 and 203.
The matter grew out of the execution of a promissory note and the contemporaneous purchase by the borrowers of a so-called investment certificate in like amount, issued by the lender, the latter instrument being alleged to be a mere subterfuge and scheme by the lender to exact interest in excess of ten percent.
Appellee has filed a motion to dismiss the appeal on the ground this court has no jurisdiction as the amount in controversy is less than one hundred dollars.
G. S. 1949, 60-3303, provides in part:
. . No appeal shall be had or taken to the supreme court in any civil action for the recovery of money unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars, . . .”
We haxe examined carefully appellants’ arguments in resistance to the motion to dismiss but find them to be without merit. It is true that a construction of the so-called investment certificate and of the circumstances surrounding its issuance is a necessary incident to the determination of appellants’ right to recover in the first instance, but, the fact remains — the action is one for the recovery of money. The allegations of the amended petition, as amended, as well as appellants’ briefs and oral argument, do not even contend that as much as one hundred dollars is in controversy. It is clear the amount is much less. Such being the case, this court is without jurisdiction to pass upon the merits of the appeal and it is therefore dismissed. | [
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff instituted suit for an accounting involving an alleged partnership or joint adventure in oil and gas drilling operations and for judgment on the amount found to be owing. The judgment decreed plaintiff, Tom Grannell, was entitled to an accounting. From that judgment the defendant, Earl F. Wakefield, has appealed.
The amount found due to appellee, if any, has not been determined. The trial court retained jurisdiction for that purpose.
Although appellant assigns various errors his fundamental complaints are (1) appellee’s evidence failed to establish the agreement alleged in this amended petition; (2) his evidence established neither a partnership nor a joint adventure but a contract of employment; and (3) such contract made in. May, 1944, during the war, provided for increased compensation to appellee of ten percent of the net profits of the enterprise; it violated the 1942 Stabilization Act (50 U. S. G. A. §961, el seq.) and the rules and regulations issued pursuant thereto; it had not been approved by the federal authorities and was void.
In a previous appeal this court held the amended petition stated a cause of action for an accounting. (Grannell v. Wakefield, 169 Kan. 183, 217 P. 2d 1059.) Appellant’s third above contention was not advanced on the first appeal. However, as we understand it, that contention applies only to wages under a contract of employment and not to a partnership or joint adventure. We must, therefore, first determine appellant’s contentions (1) and (2).
This being an equitable action the trial court called a jury in an advisory capacity. It submitted only one jury question. It was:
“Did the parties, plaintiff and defendant, .enter into an oral contract substantially as claimed and as set forth in Number 3 of the instructions?”
That instruction was:
“The plaintiff in his amended petition and amendment thereto claims that on or about the first day of May, 1944, the defendant, realizing the possibility for profits in a widespread drilling operation, and the benefit to his own production business by having drilling outfits available under competent management, entered into, at that time, an oral contract and agreement with the plaintiff, wherein, under tire terms of such agreement, it was provided that the plaintiff and defendant should for such length of time as was mutually agreeable to them conduct drilling operations, both for the defendant and for others; that it was specifically agreed that the defendant should advance all necessary funds needed for tire purchase of equipment and for the operations to be conducted; that defendant should keep all books of account and should duly account to the plaintiff for all earnings.
“Plaintiff alleges that it was further agreed that from the proceeds realized and earned from the drilling operations that were to be conducted by the parties the plaintiff was to receive as a working salary the sum of $12 a day, plus $1 per day for automobile upkeep, and also his necessary and reasonable away from home expenses; that one-half of the office expense of the defendant pertaining to his oil and gas operations should be charged against the joint enterprise of the parties, as expenses; and that the defendant should draw the sum of $150 per month for his service rendered in accordance with said agreement, all of such sums should be charged against the profits realized and earned from the drilling operations conducted by the parties.
“Plaintiff alleges that the earnings from the drilling operations would include the usual and normal contract and current price for such drilling conducted individually by the defendant, as well as the earnings made upon drilling contracts with other persons; that all of the expense of operations, including the working salary of the plaintiff and the defendant, as hereinbefore stated, were to be charged against operations, and from the net profits, subject to deductions, plaintiff was to receive ten percent of the net earnings and the defendant to receive 90 percent thereof; that the plaintiff was to act as general manager and superintendent of all of said drilling operations for and on behalf of the parties, and to charge such equipment and supplies as were necessarily required to the defendant; that the plaintiff was at all times referred to herein competent and skilled in the management of and the handling of rotary drilling operations; and that he fully conformed with and fulfilled the letter and spirit of said agreement.”
On the single question submitted, the court, in substance, instructed the jury in harmony with our former opinion that it was unnecessary the agreement should have been reduced to formal terms but might be found from the circumstances ánd the mutual acts and conduct of the parties; it was, however, necessary the agreement be established substantially as alleged and that the burden of so establishing it and its performance, by a preponderance of the evidence, rested on appellee. The jury answered the single question submitted to it in the affirmative.
Appellant moved to set aside the verdict of the jury on the ground it was contrary to the law and the evidence. He also moved for judgment in his favor notwithstanding the verdict for the reason the pleadings and the uncontradicted evidence required such a judgment. He also filed a motion for a new trial. The trial court thereafter made and filed its own findings of fact and conclusion of law as follows:
“1. This is an equity case. A jury could not be demanded as a matter of right.
“2. The court called and empanelled a jury in an advisory capacity and submitted a special interrogatory to be answered by the jury. This interrogatory was whether or not the contract between plaintiff and defendant, as alleged in plaintiff’s petition, amended petition and amendment thereto was made as claimed. The jury answered this interrogatory in the affirmative, and the court is of the opinion that the answer made by the jury is sustained by a preponderance of the evidence.
“3. In such case the court is not bound to accept the verdict of an advisory jury but»may approve and adopt it as a finding of fact by the court. The court does here and now approve and adopt the finding of the jury as a finding of the court, and, in addition thereto, finds that the contract between plaintiff and the defendant was orally made on the . . . day of May, 1944, and was to be in force and effect from that date, but on account of the fact that the defendant’s bookkeeping and accounting records were made and kept on an annual basis, it was further orally agreed between the parties that whatever earnings that might accrue for the remainder of the year, that is, the calendar year of 1944, would be carried over into the accounting for the year 1945; and at the beginning of the calendar year of 1945 the defendant’s bookkeeping and accounting method was changed to conform to the contract and agreement between the parties, and the plaintiff was treated by the defendant as a partner or joint adventurer and not as an employee of the defendant.
“4. The court further finds that it was the intention and purpose of the agreement between the parties to form a partnership specifically limited to the operations and profits from rotary drilling operations, and in fact was a joint venture between the plaintiff and the defendant.
“5. All of the material facts are found in favor of the plaintiff and against the defendant.
“6. The court further finds that a copy of the individual income tax return of the defendant for the calendar year of 1945, identified in the record as plaintiff’s Exhibit 8, was admitted in evidence over the objection of the defendant, but was not presented or read or commented upon, either to the court or to the jury. Therefore, the court excludes said Plaintiff’s Exhibit 8 from consideration in these findings and conclusions.
“7. In the course of the trial the defendant offered in evidence three Exhibits, numbered DX 16, DX 17, and DX 20. These exhibits are made up of correspondence between the defendant and the Bureau of Internal Revenue, Salary Stabilization Unit, consisting of a letter from the defendant to this department, dated January 4, 1945; a reply from the Bureau of Salary Stabilization on March 27, 1945; and record for the Bureau of Salary Stabilization Unit, date of May 7, 1945. These Exhibits are all correspondence made between the defendant and said department of the Government subsequent to January 1, 1945, after the parties had been operating the business as a joint venture since May, 1944. The plaintiff had no part in this correspondence, and the evidence does not disclose that he was consulted about the correspondence, that he saw the letters or was present when any of them were written. The defendant in his testimony stated that at some subsequent date he told the plaintiff about the result of the correspondence. This the plaintiff denies.
“8. While these Exhibits were admitted in evidence, the court does not rely upon them as negativing the contract made by the parties in May, 1944, and althought they were presented and were argued to the jury, the jury found that the contract claimed by the plaintiff in his pleadings was actually made and performed.
“Conclusion of Law
“The conclusion of law is that the plaintiff have judgment against the defendant establishing the contract between the parties as claimed by the plaintiff, as a partnership, limited in its scope to the operations and the results of the operations from the rotary drilling tools and equipment, which agreement, the surrounding circumstances and conduct of the parties establishes a contract of joint adventure, and that the plaintiff is entitled to an accounting in accordance with such contract and findings herein, s.uch accounting to be taken according to the usual, ordinary and accepted rules and practices of certified public accountants.
“The court reserves jurisdiction of this case for the purposes of accounting and a final judgment of recovery, if any.”
Appellant moved to set aside the court’s findings and conclusions as being contrary to the law and the evidence. He also again moved for judgment in his favor notwithstanding the court’s findings and conclusions for the reason such judgment was required by the pleadings and the uncontradicted evidence. Appellant filed a second motion for a new trial which covered all his previous motions and certain alleged trial errors. Appellant’s various motions were overruled and judgment was rendered in accordance with the court’s findings and conclusion.
Appellant asserts the court erred in its instructions to the jury and in its refusal to give certain instructions he requested. We find no prejudicial error in either of these particulars. Moreover the jury served only in an advisory capacity. The court later expressly approved the single finding of the jury, adopted the finding as its own, and made further findings on all other material issues. Failure to give the requested instructions to the jury, therefore, did not constitute prejudicial error. (Minch v. Winters, 122 Kan. 533, 542, 253 Pac. 578.) A trial court cannot shift its own peculiar responsibility in a case of equitable character. (Bell v. Skinner, 119 Kan. 286, 290, 239 Pac. 965.) Nor did it do so.
It was not necessary the advisory jury should be instructed on issues of the case not submitted to it for determination and which would not have aided the jury in deciding the particular question submitted to it. (Stickel v. Bender, 37 Kan. 457, 15 Pac. 580.) A court, in its discretion, may submit only certain questions to an advisory jury and error in that respect lies only in the abuse of discretion. (Wood v. Turbush, 63 Kan. 779, 780, 66 Pac. 991; anno. 156 A. L. R. 1147, 1150.) The record fails to reflect such abuse. Where a court is obliged to discover the truth of disputed facts and to reach its own ultimate decision thereon the findings of an advisory jury are not of controlling significance. (Minch v. Winters, supra, p. 542.)
We’ are, therefore, concerned only with findings made and the conclusion reached by the trial court and with appellant’s contentions (1) and (2) previously stated. Only if those two contentions .are sound can we reach the third. These contentions were made by appellant on his demurrer to appellee’s evidence and during all subsequent proceedings heretofore mentioned.
We need not unduly labor the first contention. In our former opinion, Grannell v. Wakefield, supra, we said:
“In an action against an alleged partner for money and for an accounting, it is held the petition stated a cause of action for an accounting and a demurrer to the petition was properly overruled.” (Syl.)
The petition referred to in the above syllabus was the petition as finally amended and on which tihe case was tried. Although on the trial the parties disagreed somewhat as to the precise terms of their agreement it cannot be said appellee’s evidence failed to establish the terms thereof substantially as he had pleaded them. This conclusion actually also disposes of appellant’s second contention as appellee had pleaded a joint adventure.
Able and experienced counsel for appellant recognize the well established rule that on review this court is not concerned with evidence contrary to the findings of the trial court but only with evidence which sustains or tends to support them.
The trial court expressly found: The contract was made as alleged by appellee; it was the intention and purpose of the parties to form a partnership specifically limited to the operations and profits from rotary drilling operations and in fact was a joint adventure between them (finding 4); appellant’s bookkeeping and accounting method was changed to conform to the agreement of the parties and appellee was treated thereafter by appellant as a partner or joint adventurer and not as an employee. (Finding 3.)
We need not narrate the various acts and over-all conduct of appellant which support the findings. The change in appellant’s bookkeeping methods is only one of them. The statements and directions to his bookkeeper, to appellee, the books themselves, “advances” to appellee other than his working salary, directions to appellee to include $8,000 as profits in his 1945 income tax return, which he did but never received from appellant, and other facts which need not be mentioned are clearly indicative of the intended change in relationship to one of joint adventure. The proof, therefore, supported the allegations of the amended petition and, under our former decision, appellee was entitled to an accounting.
Although counsel for appellant tactfully refrain from directly challenging our former opinion they do so by indirection. They emphasize appellee’s testimony that the sharing of possible losses was never mentioned in the agreement; he was to receive his working salary and expenses irrespective of losses; that appellee admitted he owned no interest in the drilling equipment or drilling contracts; that appellant took the drilling contracts in his own name and appellee had no control over that part of the enterprise; he only counseled with appellant concerning them.
In the former opinion we said absence of agreement to share losses is not necessarily fatal to the right of an accounting, citing Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043; Davidson v. Shaffer, 153 Kan. 661, 113 P. 2d 90, and that a joint ownership of property was not essential but only one of the circumstances to be considered with others. In the Shoemake case, supra, we said:
“Sharing of losses? Yes, one will lose his money and the other his work if the project is a failure. Sharing of profits? Yes, if the venture is successful and there are profits to be shared. There is nothing in the decided cases nor in the textbooks which says that the sharing of profits and losses in a partnership or joint adventure must be the same in kind. Fairly considered, we think the agreement between plaintiff and defendant implied such a sharing of profits and losses, and was essentially a joint adventure.” (p. 912.)
Appellant leans heavily on Yeager v. Graham, 150 Kan. 411, 94 P. 2d 317. It is true we there held:
“A partnership may be formed to explore for oil and gas lands leased by any or all of the individual members, but they must be associated together in the ownership or possession in some manner; and, although an equitable interest is sufficient, there must be an interest in the property or a right to possession in the partnership, as distinguished from that of the owner. A mere license or contract of employment is not a sufficient interest to support a mining partnership.
“Each case of joint adventure or mining partnership is to be determined by its own facts, but ordinarily there must be concurrence of a joint interest in the property sought to be held as part of the venture, an agreement, express or implied, to share in the profits and losses, and actions and conduct showing cooperation.” (Syl. ¶ 2, 3.)
The nature of the instant joint enterprise was not to acquire and hold leases jointly. It was of a different character, namely, to conduct drilling operations in a joint manner. Appellant was to furnish the drilling rigs, tools and equipment. Appellee had possession thereof and supervision and control of all workmen and drilling operations in order to produce the mutually desired results. A somewhat similar arrangement for the growth of grain, feed and livestock has been held to be essentially that of partners or joint adventurers. See State Bank v. Girardy, 117 Kan. 585, 232 Pac. 1076, and quotations therefrom and comments thereon in the Shoe-make case, supra.
We also observe in the instant case an automobile purchased and used in the operations by appellee was charged on the books to appellee under the item, "suspense account.” We also find appellant purchased three trailer houses, two to be used by employees and the other by appellee. The cost of two of them was taken out of the pay checks of the two employees periodically. The cost of the third used by appellee was not taken out of his regular working check but was charged against his account. After appellee withdrew from the enterprise appellant sold the trailer formerly used by appellee. Appellant stated the proceeds would be credited to appellee’s account. Under all the circumstances we think we would not be justified in saying appellee had no equitable interest in the joint adventure.
Appellant argues the mere designation of a relationship by the parties as a partnership or joint adventure does not determine its true legal character. That is true. (Wade v. Hornaday, 92 Kan. 293, 296, 140 Pac. 870.) Here, as already indicated, the conduct of the parties is far more significant than the name they used to reflect the nature of their relationship.
Appellant insists mere measurement of an agent’s or employee’s compensation by a percentage of profits of an enterprise is not conclusive evidence of a partnership. Undoubtedly that is true. (Shepard v. Pratt, 16 Kan. 209; Wade v. Hornaday, supra; Aetna Ins. Co. v. Murray, 66 F. 2d 289.) The sharing of profits by an agent or employee may constitute partial or complete compensation for services under a contract of employment. (Moore v. Thompson, 105 Kan. 492, 493, 184 Pac. 980; Shoemake v. Davis, supra, p. 912.) The true relationship must be determined from the conduct of the parties and the over-all facts and circumstances. (Grannell v. Wakefield, supra.)
Appellant further asserts an essential element of a partnership or joint adventure is the power of joint control. That is one of the tests which has been applied. (Sutton v. Railway Co., 104 Kan. 282, 284, 178 Pac. 418; Shoemake v. Davis, supra, p. 915.) In view of the particular nature of the instant enterprise and the previously narrated facts it is not accurate to say there was no joint power of operation or control of the drilling venture.
A single definition of a partnership which is accurate, comprehensive and exclusive for all purposes is extremely difficult. (Wade v. Hornaday, supra.) A joint adventure was unknown at the common law, being regarded as within the principles governing partnerships. (Lumber Co. v. Marshall, 109 Kan. 172, 174, 197 Pac. 861.) Although it may be said a joint adventure is not identical with a partnership it is regarded as being of a similar nature and is governed by the same rules of law. (Lumber Co. v. Marshall, supra.) This is especially true concerning the relationship of the parties inter se. While a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure, as a rule, relates to a single or particular transaction, although it may be conducted for a period of years. (Livingston v. Lewis, 109 Kan. 298, 302, 198 Pac. 952; Shoemake v. Davis, supra, p. 912.)
Having concluded the record supports the trial court’s findings and conclusion the parties were engaged in a joint adventure we need not discuss appellant’s third contention. In passing we may say, however, the application made by appellant without appellee’s’ knowledge to the Salary Stabilization Unit of the Bureau of Internal Revenue, which it denied, was based on appellant’s representations that he was attempting to increase the wages of appellee as one of his employees. The application was utterly silent with respect to the various facts upon which the trial court concluded appellee was a joint adventurer rather than a mere employee of appellant. Under the circumstances the action of the Salary Stabilization Unit does not constitute a defense to the instant action by appellee for an accounting.
Appellant argues it did not have a fair and impartial trial. We have examined the various trial errors urged under this heading. Errors, if any, committed in connection with the jury trial of the single issue submitted' to it cannot justify a reversal of the instant judgment. The trial court subsequently made its own independent finding on that single issue as well as on all others and its judgment was based upon its own findings.
As stated this action was finally tried by the court. Where a record, as here, fails to affirmatively disclose appellant’s substantial rights were prejudicially affected by such rulings, the judgment will not be reversed. (G. S. 1949, 60-3317.) The same is true concerning other assignments of error which have been examined and considered. If there was error in any of the rulings the record presented fails to disclose the error was of sufficient magnitude to warrant a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
The defendant, Charles A. Graham, and one Perry Haynes were charged jointly in an information with burglary in the second degree (G. S. 1949, 21-520) and larceny while engaged in commission of the burglary (G. S. 1949, 21-524). Separate trials were ordered and a jury returned a verdict finding defendant guilty of both offenses. Following the overruling of a motion for new trial the trial court made a specific finding the record disclosed two prior convictions of felony and then sentenced defendant, on the verdict of the jury and under the provisions of G. S. 1949, 21-107a, to confinement in the Kansas State Penitentiary for a period of not less than fifteen years. The appeal is from that judgment and sentence and from the order overruling the motion for a new trial.
In view of the issues subject to appellate review little need be said respecting the factual situation on which appellant’s conviction depends. It suffices to say, without attempting to relate all the facts which we readily conclude were sufficient to permit the ques tion of appellant’s guilt or innocence to go to the jury, the record discloses that sometime between closing time on the evening of September 7, 1949, and commencement of business on the next day a building owned by the T. M. Deal Lumber Company was burglarized at Fowler, Kan., and merchandise stolen therefrom, that on the evening of such day appellant, who lived at Reydon, Okla., was seen in the vicinity of Fowler and was making inquiry as to the whereabouts of Perry Haynes, that thereafter some of the missing merchandise was found in a truck Haynes had been driving, and that still later other items of such merchandise were found in appellant’s home at Reydon after a search of such home by law enforcement officers who had gone there after obtaining possession of a note written by Haynes and addressed to appellant’s brother at Leedey, Olda., wherein, among other things, the latter was advised to get everything cleaned up quick and to “get this word to Slim at once.” It should perhaps be added that several witnesses testified appellant had two nicknames and that some people called him “Red” while others referred to him as “Slim.”
Two contentions advanced by appellant relate to alleged erroneous admission of evidence. One is that the court erred in admitting hearsay testimony regarding the Perry Haynes note, the other that it erred in admitting the note itself in evidence. We doubt there is any merit to these contentions. Nevertheless we are not called upon to decide them. So far as the record shows all this evidence was admitted without objection. In fact counsel for appellant, who, we pause to note, did not participate in the trial, does not even assert that objection thereto was made in the court below. Under such conditions and circumstances claims to the effect the trial court erred in the admission of evidence are not subject to appellate review. See, e. g., State v. Edwards, 151 Kan. 365, 99 P. 2d 836; State v. Thomas, 157 Kan. 526, 142 P. 2d 692.
Appellant also contends the trial court erred in admitting property taken from Perry Haynes as evidence. The factual premise on which this claim is based is fallacious. Our examination of the record discloses the court permitted the state to introduce the merchandise recovered from the home of the appellant but refused to admit the property taken from Perry Haynes. It follows this contention is entitled to no further consideration.
The record shows that before the jury returned its verdict it came into the courtroom and inquired of the court whether ap pellant would be guilty of burglary if he was in Oklahoma at the time of the robbery and was an accomplice of the other members of the gang; that after being asked this question the court consulted with the attorneys for both the appellant and the state and then advised the jury that the state and the defense had agreed the question asked had nothing to do with the definite issues of the case and should not be answered; that after making such statement the court inquired of counsel if the answer it had given the jury was what they had agreed upon; that in response to such inquiry counsel for both the state and appellant, in the presence of the jury, answered in the affirmative; that thereupon the jury returned to the jury room for further deliberation and eventually returned the verdict heretofore mentioned.
Notwithstanding the foregoing appellant seeks to renege on his agreement and now contends the trial court erred in failing to give additional instruction respecting the question asked by the jury. There are two short answers to this contention. In the first place this court is not disposed to permit this appellant, or for that matter any other litigant, to predicate error on action to which he has solemnly agreed in the court below. In the next it has long been committed to the rule a party is in no position to complain of the failure to give an unrequested instruction (State v. Turner, 114 Kan. 721, 723, 220 Pac. 254; State v. Linville, 150 Kan. 617, 621, 95 P. 2d 332; State v. Gatewood, 169 Kan. 679, 685, 221 P. 2d 392).
It is next argued the trial court erred in overruling appellant’s motion for new trial. Under our decisions, even where a motion for a new trial is filed and presented in the court below, an appeal from an order overruling it presents nothing for' review where — as here — the record fails to set forth the motion or the grounds on which it is based and in no way discloses what alleged trial errors were brought to the attention of the trial court when it was heard (State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Herschberger, 160 Kan. 514, 518, 163 P. 2d 407; State v. Owen, 161 Kan. 361, 168 P. 2d 917; Hamilton v. Binger, 162 Kan. 415, 176 P. 2d 553; Liston v. Rice, 162 Kan. 644, 179 P. 2d 179; Klager v. Murphy Alfalfa, Inc., 165 Kan. 130, 193 P. 2d 216; In re Estate of Michaux, 171 Kan. 417, 420, 233 P. 2d 510).
Finally it is argued appellant’s sentence, in conformity with the provisions of G. S. 1949, 21-107a, is invalid because the trial court did not have before it evidence sufficient to warrant its finding that appellant had twice before been convicted of a felony punishable by confinement in the penitentiary. Specifically this objection is based upon the premise that at the time of sentencing appellant the trial court did not have before it documentary evidence establishing such convictions. Under existing conditions and circumstances such evidence was neither necessary or required. Appellant, himself, had admitted them and no claim is made that his testimony in that respect was not true.
The record fails to establish error in the court below. Therefore the judgment must be and it is hereby affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
In each of these cases the plaintiff sued for damages for the wrongful death of her husband alleged to have resulted from the negligence of the defendant, Clyde Burk. They were filed separately in the district court of Shawnee county and one was assigned to each of the three divisions of that court. Burk’s insurance carrier was made a party-defendant and filed a demurrer to the petition as amended upon the ground that the petition does not state a cause of action against it. In each of the cases the demurrer was overruled and the insurer alone has appealed. The cases are consolidated here because the same legal question is presented in each of them.
The facts pertinent to this appeal may be stated briefly as follows: On February 9, 1950, Robert C. Burns, husband of plaintiff in case No. 38,546, was operating a described automobile owned by him. Riding with him was Joseph E. Briggs, husband of plaintiff in case No. 38,533, and Max Eldon Wade, husband of plaintiff in case No. 38,546. Burns was driving his automobile south from Topeka on U. S. Highway No. 75, which is paved. At a place about three-tenths of a mile south of the Carbondale intersection Clyde Burk, doing business as the Burk Nursery Company of Dodge City, was driving his Ford pick-up truck north on the same highway and negligently drove or allowed the truck to turn into the west side of the highway in front of the automobile driven by Burns, causing a collision, as a result of which each of the three men who were riding in the automobile received fatal injuries.
In this appeal we are not concerned with the negligence of Burk. He has filed an answer in each case and the cases have not been tried. Appellant here does not contend that the respective petitions do not state causes of action against Burk. With respect to appellant it is alleged in the petition, as amended in case No. 38,533 (and substantially the same in each of the other cases) the following:
“That the defendant, The Hartford Accident & Indemnity Company, is a foreign insurance corporation licensed to engage in the insurance business in the state of Kansas, and that said corporation insures against liability to others by reason of the operation of motor vehicles; that prior to the time of said accident above set forth the defendant, Hartford Accident & Indemnity Company, issued and delivered a policy of motor vehicle liability insurance to the defendant, Clyde Burk, for a valuable consideration, a copy of which is filed herein, marked ‘Exhibit A’ and made a part hereof, by which policy the company agreed to pay any liability incurred on account of the injury to property or persons of others by reason of the operation of the motor vehicle owned and operated by the defendant, Clyde Burk, and his agents, servants, and employees at the time and place hereinbefore referred to; that said policy of insurance was filed by the defendants with the State Corporation Commission of the state of Kansas and was approved by said Commission, all in accordance with G. S. 1935, 66-1,128; that said policy of insurance was in full force at the time of said collision; and that said defendant, Hartford Accident & Indemnity Company, is liable to the plaintiff for the damage caused by the said collision because of the negligence of the defendant, Clyde Burk, at the time and place hereinbefore mentioned.
“Plaintiff further alleges that to the best of her information and belief the said Clyde Burk had complied with all of the conditions contained in said policy; that although the place of the collision at Carbondale, Kansas, is at or about 240 miles from Dodge City, Kansas, that at said time and place aforesaid the said' Clyde Burk was then and there acting pursuant to and in the furtherance of his business and occupation, to-wit: the nursery business, and more specifically, the said Clyde Burk at said time and place was operating as a private carrier and transporting nursery stock in said truck in the furtherance of his business; and that said truck was being operated under a private carrier permit Number 35-74 issued by the Corporation Commission of the state of Kansas, a certified copy of which certificate is filed herein, marked Exhibit ‘B’ and made a part hereof, and said vehicle was being operated in the state of Kansas and at said time and place pursuant thereto as hereinbefore alleged, and was being operated upon the highways of the state of Kansas at said time and place pursuant to Section 66-1,128 G. S. 1935.”
Exhibit “B,” attached to and made a part of the petition, reads:
“Before the State Corporation Commission of the State of Kansas
“In the matter of the application of Clyde Burk, dba Burk’s'
Nursery of Dodge City, Kansas, for an Order Restricting Pri- Permit No. vate Carrier Permit 35-74 within a radius of one hundred- 35-74 fifty (150) miles’ of base point.
“Order Restricting Permit
“On this 25th day of May, 1942, comes on for consideration and determination by the Commission, the matter of the application of Clyde Burk, dba Burk’s Nursery of Dodge City, Kansas, for an order restricting said operator to operations within a radius of one hundred-fifty (150) miles of said operator’s home, 3 miles south-west of Dodge City; and the Commission after examining the files and being fully advised in the premises, finds that said application should be granted.
“It Is, Therefore, by the Commission Ordered that said private carrier permit No. 35-74, issued to said Clyde Burk, dba Burk’s Nursery of Dodge City, Kansas, be and the same is hereby restricted to permit said applicant to operate only within a radius of one hundred-fifty (150) miles of said operator’s home, 3 miles south-west of Dodge City, Kansas.
“The Commission retains continuing jurisdiction in this matter to make such further restrictions, reservations, limitations and amendments to this permit as to it may seem advisable in the premises.
Richard B. McEntire
Richard B. McEntire, Secretary.”
SEAL
ECS”
We first take note that the above order of May 25, 1942, is not the permit which at some time prior thereto had been issued to Burk. Since that was referred to in the order as a “private carrier permit” we assume that at sometime prior to the date of this order there had been issued to Burk a permit to operate as a private motor carrier of property, as that term is defined in G. S. 1949, 66-1,108 (i), as follows:
“The term 'private motor carrier of property’ when used in this act shall mean any person engaged in transportation, by motor vehicle, of property sold or to be sold by him in the furtherance of any private commercial enterprise, or property transported by the owner, lessee or bailee for the purpose of lease, rent or bailment.”
And G. S. 1949, 66-1,111, provides:
“No . . . private motor carrier of property shall operate any motor vehicle ... on any public highway in this state except in accordance with tire provisions of this act.”
Counsel for appellant argue there can be no question of the state corporation commission’s authority to restrict the permit, citing G. S. 1949, 66-1,112b. This deals with an application for a permit and provides for a notice and hearing and for terms of permits, and contains the following:
“The commission is hereby vested with power and authority to grant or deny the permit prayed for, or to grant it for the partial exercise only of the privilege sought, . . .”
It is observed that the order of May 25, 1942, was not made upon the application for a permit, neither was it made after notice and a hearing. The order was ex parte. Apparently Rurk filed an application to have the permit previously issued to him limited as to area, and that the commission examined the files and made an order granting the request. What the files showed is not disclosed. The granting of these permits was regarded by our legislature as a matter important to the public as well as to the applicant. We are cited to no statute of this state which authorizes the commission to modify them by an ex parte order as to area covered. We shall not rest our decision upon this point, however, since it has not been argued by counsel. Apparently counsel on both sides have presented the case in the trial court and here as though the commission’s order of May 25, 1942, was valid, and for the sole purpose of this case, we shall so regard it.
Counsel for appellant argue that Burk was not operating his vehicle at the time of the accident pursuant to his permit and point out that the order of the corporation commission of May 25, 1942, restricts the permit previously issued to Rurk to the territory within a radius of 150 miles of Turk’s base point, which was three miles southwest of Dodge City, and that the accident happened 240 miles from Dodge City. On this point they cite Smith v. Republic Underwriters, 152 Kan. 305, 101 P. 2d 858, which was considering a provision in an insurance policy which limited coverage to vehicles “being operated ‘pursuant to the permit,’ ” and where the court held:
“. . . the burden is upon the plaintiff, in establishing a cause of action, to show by substantial evidence which proves or tends to prove that the vehicle at the time in question was operated in the business or service authorized by the certificate or permit, . . .”
In their brief counsel quote from the opinion the following:
“Having given consideration to the commercial operations provided for in the certificate or permit — and therein specifically set out — the company issues a policy covering vehicles engaged in such operations. It does not insure vehicles otherwise engaged — that is, which are being used for commercial, personal or social purposes outside the operations covered by the permit. Or, as the endorsement has it, the policy covers vehicles being operated ‘pursuant to the permit.’ Accordingly, in determining whether there was insurance coverage, a material question was whether the vehicle, at the time of the accident, was being operated under or pursuant to the permit.”
The opinion continues:
“This does not mean that deviation from routes specified in a permit or some other departures from the precise terms of a permit suspend the policy. Not at all. A contrary doctrine has been frequently stated. ... In this connection we must note an obvious misunderstanding which pervades the record. It is the apparent assumption that unless the McFadden truck was being operated ‘pursuant to the permit’ it was being operated contrary to the permit or in violation of the law. Of course, that does not at all follow. . . .
“There is nothing novel in the limitation of coverage contained in the instant endorsement. For instance, provisions are common which limit coverage to specified use of the vehicle. In fact, the instant provision is really one as to use. . . .”
Appellants also cite Schoonover v. Clark, 155 Kan. 835, 130 P. 2d 619. There a truck owner who had a permit to operate his truck as a private carrier, after completing a trip using his truck in the business authorized by the permit, went on a pleasure trip to Dodge City, sixty-eight miles from the place he ceased to use his truck on the trip and there had an accident, for which he was sued. It was held the insurer could not be joined in that action for the reason that the truck was not being used under the permit at the time of the accident.
In Waugh v. Kansas City Public Service Co., 157 Kan. 690, 143 P. 2d 788, the question of whether the insurer of a truck owner, who had a permit as a contract and as a private motor carrier of property could be joined as a defendant, it was said (p. 696):
“It is not argued that if at the time and under the circumstances of the collision Waugh’s truck was being used in his business as a licensed carrier of property the insurance company was improperly joined as a party to the action. Our decisions have definitely determined that question. See Schoonover v. Clark, 155 Kan. 835, 837, 130 P. 2d 619; Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557; Fisher v. Central Surety and Ins. Corp., 149 Kan. 38, 45, 86 P. 2d 583, and Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918, . ."
So, in each of the cases cited it was the use of the truck for the purpose authorized by the permit that was the controlling question. In the petition in this case such use was alleged at the time of the accident in question.
In Putts v. Commercial Standard Ins. Co., 173 F. 2d 153 (Tenth Circuit), the owner of the truck was the holder of a permit issued by the State Corporation Commission of New Mexico, which expressly limited the coverage of the policy to the motor vehicle described therein while being operated within fifty miles of Deming, New Mexico, as a motor carrier of goods for hire; also the holder of a permit from the Interstate Commerce Commission to operate in interstate commerce as a contract carrier of goods for hire. At the time of the accident which gave rise to the suit he was enroute to Dallas, Texas, for the purpose of transporting merchandise belonging to him for use in his cotton gin. The court held he was not at that time acting under either one of the permits and hence that the insurer was not liable, but the court took occasion to say:
“Had the Chevrolet truck been operating under either the permit issued by the Corporation Commission or the permit issued by the Interstate Commerce Commission at the time of the accident, the area of operations limitation would not have applied to a claim asserted against the Insurance Company by Flannes.”
In Trinity Universal Ins. Co. v. Cunningham, 107 F. 2d 857 (Eighth Circuit), construing the Missouri bus and truck law, the court had occasion to say:
“Appellant contends that the phrase pursuant to the certificate of convenience and necessity’ means in effect, fin accordance with,’ and ‘as limited by any and all provisions contained in the certificate of convenience and necessity.’ If there were such a limitation there would he no coverage of the motor vehicle that was being operated by the insured at the time of the collision, . . .
“To construe this phrase as interpreted by appellant would be a strict construction and would not be in conformity with the general intent and purpose of the rules of the Commission contained in the endorsement or rider. A more reasonable and, we think, the proper interpretation is, ‘pursuant,’ in the sense of fiicting or done in consequence’ of the permit of convenience and necessity, and in the prosecution of the business authorized therein. . .
In Miller v. State Automobile Asso., 74 N. D. 306, 308, 21 N. W. 2d 621, it was said:
“The term ‘pursuant to’ in the endorsement does not operate to restrict the liability of the Insurance Company to injuries caused by motor vehicles that at the time the injury is inflicted are being operated in strict conformity with the conditions of the certificate, the rules and regulations of the Board, and the laws of the state relating to the operation of motor vehicles. The liability of the insurer extends to all acts of negligence of the carrier, including those which involve disregard or violation by the carrier of the rules of the Board or the laws of the state.”
One of the principal purposes of our statutes pertaining to the regulation of motor carriers of persons and property is to have the motor vehicles operated in such a way as to promote the safety and welfare of the public. The commission is authorized to issue permits to private motor carriers of property, require annual and other reports, and prescribe reasonably necessary rules and regulations. It is unlawful for a private motor carrier of property to operate within this state without obtaining a license therefor, which can be issued only upon written application to the corporation commission stating the ownership, financial condition, equipment to be used, and such other information as the commission may require. In addition to the regular license fees or taxes imposed there is levied a gross ton mileage tax for which the commission shall issue appropriate plates bearing the letters “K. C. C.,” which shall be attached to the vehicle for which the plates are issued. The commission is given authority to administer and enforce all provisions of the act and to inspect the books or other documents for that purpose. A number of the safety rules are embodied in the statute. This summarization is not intended to be complete. Any violation of the act by the carrier is declared to be a misdemeanor for which upon a conviction the carrier may be fined in a sum not exceeding $500, and the permit issued to the carrier may be suspended or revoked. (See, G. S. 1949, Chap. 66, Art. 1, sections l,112d; l,112g; 1,115, 1,120; 1,120a; 1,123; 1,129; 1,130; 1,112b.)
If we were to carry the argument of counsel for appellant to the extreme, any material violation of the statutory requirements imposed upon the holder of the permit would constitute a violation of the permit and thereby relieve the insurer of liability under the policy. We think the position is untenable. Under the allegations of the petition we conclude that the insurer is not released from liability upon the ground that the accident occurred about 240 miles from Dodge City.
With reference to insurance the statute provides:
“66-1,128. No certificate or license shall be issued by the state corporation commission to any ‘public motor carrier of property,’ ‘public motor carrier of passengers,’ ‘contract motor carrier of property or passengers’ or ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by, the state corporation commission, a liability insurance policy in some insurance company or association authorized to transact business in this state, in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved but in no event shall such sum be less than five thousand dollars ($5,000) for loss to property of others in any one accident, ten thousand dollars ($10,000) for personal injury or death to any one person in any one accident and $20,000 for injury or death to two or more persons in any one accident, which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from die negligent operation of such carrier. No other or additional bonds or licenses than those prescribed in this act shall be required of any motor carrier by any city or town or other agency of the state.”
Counsel for appellant next contend that Burk was committing a violation of the insurance policy not covered by the Kansas liability and property endorsement. With respect to that they point out that one of the endorsements uses the following phrase:
“. . . operated or used by the assured pursuant to the certificate, permit or license issued by the State Corporation Commission of Kansas.”
The interpretation of that phrase has already been determined. Appellant further contends that Burk was violating the terms of the insurance policy filed with the state corporation commission.
The policy filed gave the name of the insured as Clyde Burk; his address as “Route No. 1, Dodge City, Ford county, Kansas;” his occupation or business as “Nursery”; named the insured as an individual; the policy period from April 1, 1949, to April 1, 1950; the policy stated coverage to be: “A — Bodily Injury Liability, B— Property Damage Liability, C — Medical Payments,” with limits of liability for each, and it contained this provision:
“Item 5. The purposes for which the automobile is to be used are ‘pleasure and business,’ unless otherwise stated herein (typed in) Commercial — Business and Pleasure, (a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the Named Insured as stated in Item 1, including occasional use for personal, pleasure, family and other business purposes.”
It contained the following under “Insuring Agreements”:
“VI. Policy Period, Territory, Purposes of Use
“This policy applies only to accidents which occur during the policy period, while the automobile is within the United States of America, its territories' or possessions, Canada or Newfoundland, or is being transported between ports thereof, and is owned, maintained and used for the purposes stated as applicable thereto in the Declarations.”
The policy was filed with the commission and at that time contained two endorsements, each dated April 1,1949. The first reads:
“Automobile Interests Covered (Truckmen or Bus Operators) It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability and for Property Damage Liability does not cover as an Insured any person or organization, or any agent, employee or contractor thereof, other than the named Insured, who is required to carry automobile liability insurance under any motor carrier law.”
The second reads:
“Public Liability and Property Damage Endorsement
The State Corporation Commission, State of Kansas, Docket No. 15600
“It is understood and agreed that the policy to which this endorsement is attached is written in pursuance of and such policy shall fulfill the insurance requirements of section 66-1,128, General Statutes of Kansas 1935, or as may be hereafter amended, and the rules and regulations of the State Corporation Commission adopted thereunder with respect to liability for injuries to persons (except employees of the assured injured in the course of their employment) and for damage to property (except cargo). The obligations and promises of this endorsement, however, shall be effective only while the equipment covered by this policy is being operated within the State of Kansas.
“It is further understood and agreed that the company waives a description of the motor vehicles, trailers or semitrailers insured hereunder and the policy is hereby amended and extended so as to cover any and all motor vehicles, trailers and semitrailers operated or used by the assured pursuant to the certificate, permit or license issued by the State Corporation Commission of Kansas.
“Nothing contained in the policy or any endorsement thereon, nor the violation of any of the provisions thereof by the assured, shall relieve the company from liability thereunder as an insurer; provided, that nothing herein shall be construed to prohibit the company from providing for the right of reimbursement or subrogation as between itself and the assured in cases where the carrier is operating equipment in violation of the permit, license or certificate issued to him by the Commission.
“The cancelation of the policy to which this endorsement is attached shall not take effect until after ten (10) days notice in writing, by the company, shall have first been given to the State Corporation Commission of Kansas, at its office at Topeka, Kansas. Said ten (10) days notice to commence from the date notice is actually received at the office of the Commission.
“Attached to and forming part of policy number AE 37533 of the Hartford A & I of Hartford, Conn, issued to Clyde Burk.”
Without going into an extended discussion of it we think it cannot be said that the insurance policy was being violated at the time and place of the accident. Counsel have cited a number of cases, all of which and others have been examined, but we think it not worth while to go into an extended discussion of them.
The judgments of the respective trial courts which were appealed from are affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Two actions were filed by a man and his wife to reform a health and accident policy and to enforce it as reformed. Judgment was for plaintiffs, George E. and Katheryn Gilbert. The defendant, Mutual Benefit Health & Accident Association, appeals.
The only reformation sought was the correction of the effective date of the policy in order to make it reflect the alleged agreement pursuant to which the application for insurance was signed and the first quarterly premium paid. Appellees were injured in an accident the day after making such payment and before the home office of the insurer had issued the policy. The same proof applied to each case. The actions were consolidated below and the appeals are consolidated. The trial court made the following findings of fact and conclusions of law:
“1. The defendant is organized and in existence for the purpose of selling and writing policies of Insurance, and was doing business as such in the State of Kansas, during the year 1950.
“2. That during the year 1950 the defendant’s Kansas City, Missouri, office was a so-called ‘direct dealing’ office and the Kansas City, Kansas, office was a so-called ‘sub-office’ of the Kansas City, Missouri, office, and Frank Stephens, Jr., was the assistant manager of the Kansas City, Missouri, office and a general agent of the defendant, and Melvin Colhour was a soliciting agent of the defendant, and Donna Ashley was a clerk in the Kansas City, Kansas, office of the defendant.
“3. That on the 29th day of June, 1950, defendant’s agent, Melvin Colhour, sold the plaintiffs defendant’s so-called Hospital Expense Policy of Insurance and filled out an application for such a policy; said Melvin Colhour informed the plaintiffs that they would be covered by insurance as of the day they paid the first quarterly premium, if the defendant Company issued a policy of Insurance; and further informed the plaintiffs that the first quarterly premium of $24.80 to be paid by them would pay for insurance until October 1, 1950, if the premiums were paid on the next day as plaintiffs had agreed to do.
"4. That Melvin Colhour when filling out the application prior to plaintiff George Gilbert signing same, filled in the blanks at the bottom of said application as follows, ‘premium pays insurance to October 1, 1950, this June 30th, 1950’; and that after signing the application plaintiff George Gilbert did not again see the application nor hear from the defendant Company in regard to the application until he received a policy in August of 1950.
“5. That on the 30th day of June, 1950, Katheryn Marie Gilbert, one of the plaintiffs, paid $24.80 to Donna Ashley in the Kansas City, Kansas, office of the defendant Company, as the first quarterly premium for said Hospital Expense Policy.
“6. Donna Ashley, prior to June 30th, 1950, had been instructed by Frank Stephens, Jr., general agent of the defendant Company, that she was to write in the word ‘received’ and stamp in the date on the upper middle margin of such an application upon receiving the first quarterly premium, and she had been further instructed by said general agent, that the date she was to stamp on the upper middle margin of the application should correspond to the date at the bottom of the policy which had been entered by the soliciting agent when filling out the application; Donna Ashley followed these instructions of the general agent when she received the plaintiff’s premium and wrote the word ‘received’ and stamped in a date on the upper middle margin of plaintiff’s application, but in stamping in the date Donna Ashley mistakenly stamped in ‘July 3, 1950,’ rather than the proper and true date of ‘June 30, 1950.’
“7. Plaintiffs had a serious accident on the evening of July 1, 1950, resulting in their being hospitalized.
“8. In October of 1949 the defendant Company issued a procedure bulletin to all managers which was in effect at the time of the application and policy here in question and which reads in part as follows:
“ ‘To All Managers:
Procedure Bulletin 172
Applications H&A
Underwriting H&A
Dating of Policies
Full Premiums collected with Applications, Partial Payments and C. O. D. Applications.
It has become necessary to establish a uniform practice of dating policies. The following rules have been established for the Home Office in order that this may be accomplished.
1. Full First Premium. Collected at Time Application is Signed.
The policy will bear an issued date which agreed with the date the application u>as received in the State Managers office or any direct dealing District Office, to become effective at 12 o’clock noon on that date, subject to the acceptance of the risk by the Home Office.
In order to prevent any misunderstandings it is important that your office exercise extreme care to see that . . .
1. The face of the application is stamped (center margin near top of application) to show the date it was received in your office, or . . .’
“It was pursuant to these procedure rules that Frank Stephens, Jr., instructed Donna Ashley to receive the applications and to stamp the date of receiving in the center margin near the top of the application.
“9. On the 5th day of July, 1950, the abovesaid application was received in defendant’s home office at Omaha, Nebraska, and in due course of business came into the hands of Frank A. Mech, one of the defendant’s underwriters, who, as per his instructions in processing an application, determined that the defendant Company should assume the risk and thereupon issued a policy; to establish the policy date’ or the date of which insurance would be in effect, said Frank A. Mech looked to the upper center margin of the application and made the policy date’ correspond to the date stamped there under the word ‘received’ which was the precise method said underwriter was instructed to use in each case to establish the ‘policy date.’ In as Donna Ashley had mistakenly stamped in July 3, 1950, in the upper middle margin under the word ‘received’ instead of the true date of June 30, 1950, said underwriter also mistakenly made the ‘policy date’ July 3, 1950, rather than the correct date of June 30, 1950.
“10. The policy of defendant as contained in instructions from its home office to its agencies, at all times material to this suit, was, in cases in which no binding receipt is issued, to issue policies bearing policy dates identical to the dates on which application for said policies are received in direct reporting offices of defendant.
“11. The policy of defendant in issuing policies bearing policy dates identical to the dates on which the applications for said policies are received in direct reporting offices of defendant, in cases in which no binding receipts are used, was communicated by defendant to the Kansas City, Missouri, office of defendant of which Frank L. Stephens is manager, prior to June 29, 1950.
“12. The Kansas City, Missouri, office of defendant of which Frank L. Stephens is manager, was a directing [sic] reporting office of defendant at all times material to this suit.
“13. The application for the policy here in litigation was received in the Kansas City, Missouri, office of defendant, of which Frank L. Stephens is manager, on July 3, 1950.
“14. The application for the policy here in suit was received at the home office of defendant on July 5, 1950, and a policy was issued by said home office on that date.
“15. The accident involved in this litigation occurred on July 1, 1950.
“Conclusions of Law by the Court.
“1. Frank Stephens, Jr., general agent and assistant manager of defendant’s Kansas City, Missouri, direct dealing office delegated to Donna Ashley of the Kansas City, Kansas, sub office, the authority to receive applications, including plaintiffs’ application, on behalf of said general agent, and to perform the function of indicating on the application the day the premium was received; and all of said acts on the part of Donna Ashley were purely clerical and ministerial in nature and did not involved [sic] the exercise of judgment or discretion, and said acts when performed became the acts of said general agent and were binding on the defendant Company, so that defendant’s direct dealing office legally received the application and premium in question when Donna Ashley received them on the 30th day of June, 1950.
“2. The application for defendant’s Hospital Expense Policy numbered FHMK 60 267517 50M upon which Donna Ashley mistakenly entered the erroneous date of July 3, 1950, on the upper center margin thereof, will be reformed so as to read ‘received June 30, 1950’; and the ‘policy date’ of said policy erroneously established by the defendant Company’s underwriter, Frank A. Mech, as July 3, 1950, due to the abovesaid mistaken entry by Donna Ashley, will be reformed so that said policy shows a ‘policy date’ of June 30, 1950; and plaintiffs will each be given judgment on their separate causes of action on the policy as reformed and in the amounts mutually stipulated to by counsel.
“3. The policy here in suit was issued by defendant with erroneous date July 3, 1950, when it should have been dated June 30, 1950.”
Appellant concedes it did not, and does not now, complain concerning any finding of fact. It requested no additional findings and it filed no motion for judgment in its favor on the findings made. The only possible grounds for appeal contained in its motion for a new trial, in view of its contentions, are:
“Erroneous Rulings of the Court.
“The Judgment is in whole or in part contrary to the evidence.”
The findings and the record make it entirely clear it was the intent, purpose and understanding of the insured, the soliciting agent from the Kansas City, Kansas, office and its manager that the policy should be effective on the date the first quarterly premium was paid, to wit, June 30, 1950, and that appellees need have no worry about not having immediate insurance coverage.
Not only does that fact clearly appear from the oral testimony of both appellees’ and appellant’s witnesses but the written application itself, in the form originally signed, evidences this fact. (Findings 3 and 4.) In addition to the date of the premium payment on June 30,1950, the application at that time further stated that the quarterly premium paid the insurance to October 1,1950. Although finding 4 to that effect resulted from conflicting evidence, resolved in appellees’ favor, relative to what the application contained at the time of signing, it is plain, as will presently appear, this is precisely what appellant’s agents, according to their own testimony, intended. Manifestly in order for the quarterly premium to provide insurance coverage for three months or until October 1, 1950, it necessarily follows the policy had to be effective on the date of the accident, July 1,1950.
Furthermore Frank L. Stephens, Jr., general agent and assistant manager of the Kansas City, Missouri, office, appellant’s direct forwarding office, testified with commendable frankness: He, personally, on July 3 changed the application at the request of Mr. Col-hour, tiie soliciting agent in the Kansas City, Kansas, office, by striking out, at the bottom, the word “November” and substituting therefor the word “October” and that he also altered the other line so as to make it read, “June 30, 1950”; Colhour advised him the application had been improperly dated; that he (Stephens) made these changes in the application for the purpose of having the policy issued as of June 30, 1950; that if this application had been dated June 30, 1950, in the top of the center margin, as it was at the bottom, he assumed the policy would have been issued as of such date by the home office.
It, therefore, is entirely clear, under appellant’s own evidence, this application was not properly dated at the top by appellant’s agents in order to reflect the undisputed agreement of the contracting parties and further that the general agent and assistant manager of the direct forwarding office in Kansas City, Mo., attempted to alter it so as to reflect the true terms on which the application was based.
In addition to the foregoing facts it also should be noted it had been the undisputed practice of the Kansas City, Kan., office and also of the Kansas City, Mo., office to have applications obtained through the Kansas City, Kan., office bear the same date in the top center margin as was contained at the bottom of the application. The Kansas City, Mo., office changed that practice of processing policies on applications received from the Kansas City, Kan., office after the instant controversy arose. It changed its practice by reason of an interpretative bulletin from the home office of appellant which was issued in order to clarify a former procedure bulletin.
In any event the established practice of those offices had been and was in operation at the time this application was processed. Notwithstanding their clear intent and purpose to follow such practice in order to have a policy issued by the home office effective as of June 30,1950, they left at the top margin of the application the date of July 3, that being the date the application was received in the mail by the Missouri office. The application was forwarded to the Missouri office on July 1. July first and second of 1950 were Saturday and Sunday.' Appellant’s home office, in keeping with its practice, issued the policy as of July 3, the date the application showed in its top margin it had been received in the Kansas City, Missouri, office.
Whether the established practice of the Missouri office relative to the dating of applications obtained through its • Kansas City, Kansas, office was due to the close proximity of those offices and the ease of prompt communications between them does not appear and is not our concern. It is somewhat difficult to believe the home office was not aware of this established practice as it pertained to the two Kansas City offices. Assuming, however, it was not aware of it, and we impugn no bad motives, it is beyond controversy that the Kansas City offices made a mistake, based on their own established practice, by their failure to place the date of June 30, instead of July 3, at the top of the application in order to disclose clearly to the home office the true terms on which the application for insurance was made. It is further apparent from the evidence that this failure prevented the issuance of the policy by the home office as of June 30 for the reason that had the application been so dated at the top the policy would have been issued as of such date.
Under such circumstances may the insurer defeat reformation of the policy and its enforcement as reformed?
Appellant argues where reformation of a policy is sought on the ground of mistake, and without fraud, it is necessary to establish mutuality of mistake by clear and convincing evidence, citing Algeo v. Employers Indemnity Corporation, 119 Kan. 186, 237 Pac. 879; Waddle v. Bird, 122 Kan. 716, 253 Pac. 576; Home Owners’ Loan Corp. v. Oakson, 161 Kan. 755, 173 P. 2d 257, and similar cases. This is the general rule. See, also, Federal Land Bank v. Bailey, 156 Kan. 464, 468, 134 P. 2d 409.
We previously have discussed the mistake made by appellant’s agents in failing to make the application reflect the agreement between the contracting parties. Surely no one can contend this application, in the light of the facts formerly discussed, including the insertion of the date of July 3, constituted the application signed by the insured. In view of this record it readily may be conceded appellant’s agents did not deliberately perpetrate a fraud on appel lees. It appears they endeavored to get a policy issued as of June 30 in harmony with the true terms of the application and the agreement. Nevertheless the insertion of the date of July 3 in the top margin of the application resulted in a constructive fraud on appellees. It prevented the delivery of the policy for which they applied and paid the premium.
The general rule that instruments can be reformed only for want of mutual mistake is qualified in the case of actual fraud. (Cox v. Beard, 75 Kan. 369, 89 Pac. 671; Hickman v. Cave, 115 Kan. 701, 224 Pac. 57; and likewise in cases of constructive fraud; Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; Federal Land Bank v. Bailey, supra.)
We are not concerned with the cause of the failure to date the application so as to bring it into harmony with the true terms of the application and the agreement to provide appellees with immediate insurance coverage. It has been held reformation of an instrument will be granted without regard to the cause of the failure to express the contract as actually made, whether due to fraud, mistake in the use of language, or any other thing which prevented the expression of the true intention of the parties. (Federal Land Bank v. Bailey, supra, p. 469, and cases therein cited.)
Appellant contends under the terms of its contract with Colhour, the latter, as a soliciting agent, had no authority to make a binding contract of insurance which contravened the provisions in the application that no insurance would be effected until the policy was issued. We shall deal presently with that specific provision. We, however, need not engage in any lengthy discussion of Colhour’s authority. Under the facts of this case that subject presents an abstract question. Colhour’s agreement was approved by the general agent of the Kansas City, Kan., office .and likewise by Stephens, a general agent who was also the assistant manager of the direct dealing district office in Kansas City, Mo. The acts of those officers, in contemplation of law, were the acts of their principal and binding on it. (Boberg v. Fitchburg Mutual Fire Ins. Co., 127 Kan. 787, 275 Pac. 211; Phoenix Mutual Life Ins. Co. v. Central States Fire Ins. Co., 137 Kan. 69, 73, 19 P. 2d 696:)
In passing, however, it is also well to state it is the duty of a soliciting agent to accurately and truthfully state the full terms upon which an application is made and to submit it in that form to the principal for his approval or rejection. (Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Mercantile Co. v. Insurance Co., 101 Kan. 522, 168 Pac. 323; Phoenix Mutual Life Ins. Co. v. Central States Fire Ins. Co., supra.) The failure of a soliciting agent to do so is in legal effect the fault of his principal. (Pfiester v. Insurance Co., supra.) Surely the same rule must apply with far greater force to the officers previously mentioned who approved Colhojir’s agreement in harmony with the established practice of both Kansas City offices.
Any conflict in operating procedure between the home and district offices of an insurance company, resulting from a misunderstanding between them, is an internal matter to be adjusted by them. It is not a conflict which may be settled among themselves to the detriment of a wholly innocent applicant for insurance. It simply will not do for courts to place their stamp of approval on conduct of insurance companies which permits soliciting agents to sell accident insurance to people with the enticing assurance it will be effective immediately for a contemplated automobile, or other, trip and then find that by reason of some possibly conflicting procedure in the home and district offices of the company, or because of some oversight or mistake by the latter officers or the soliciting agent in making the application reflect the true terms thereof, the insured, having paid his premium which is accepted, is held to be without insurance coverage.
We now return to appellant’s contention, vigorously asserted, that appellees are bound by the following provision in the application:
“Do you understand and agree that no insurance will be effected until the policy is issued? Yes”
In view of what already has been said we need not unduly labor this contention. We are not unmindful of the importance of the quoted provision as applied to many insurance problems not here involved. The issue here is not whether the appellant-insurer might have rejected the application for some justifiable reason. The only question here pertains to the effective date of the policy.
Touching that specific .question we find a conflict between the above quoted provision and other statements in the application itself as signed by Gilbert. It is elementary that ambiguous terms must be most strongly construed against the insurer. (Mercantile Co. v. Insurance Co., supra, p. 526.) Here the application as signed by Gilbert discloses he applied for insurance coverage which would begin June 30, 1950. He did not apply for insurance which would begin July 3. That date was later placed on the application by appellants agents without Gilbert’s knowledge or consent. The premium was paid on June 30, appellant retained it and issued a policy but not the policy for which Gilbert had applied.
Furthermore the application did not contain the positive and admitted agreement of both Kansas City offices that the policy should be effective as of June 30. Appellant’s own evidence admits if the application had been dated at the top so as to reflect that agreement the policy would have been issued by the home office as of June 30 in harmony with its own practice and the established practice of both Kansas City offices. This is a plain concession that under appellant’s own home office practice it did not adhere, on the point here involved, to the provision in the application now relied on but that, on the contrary, it placed an effective date on some policies prior to the date on which such policies were actually issued by the home office. In fact that is precisely what the home office did in this case. This application was not received in the home office until July 5 but the policy was neverthless dated July 3.
Under these circumstances we think the quoted provision now relied on by appellant cannot prevail over the specific terms of the application relative to the effective date of the policy and the admitted agreement in harmony therewith. Appellees were entitled to have the policy reformed to conform to the intendment of the parties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court sustaining a demurrer to plaintiff’s petition. Appellant will hereinafter be referred to as plaintiff and appellees as the city or city of Topeka. Plaintiff’s action is a proceeding in the nature of quo warranto brought in the name of the state of Kansas on relation of the county attorney of Shawnee county against the city of Topeka, a municipal corporation, and the mayor and city commissioners of the city to question the validity of two ordinances of the city of Topeka; the first, by which the city sought to annex Gage Park, a single tract consisting of 160 acres owned by and lying adjacent to the city of Topeka under proceedings set forth in G. S. 1949, 12-501 et seq.; and the second by which the city sought to annex property adjacent to and adjoining the north boundary of Gage Park on the theory that by the first ordinance the city limits were extended to include Gage Park, thereby making the property involved adjoining and adjacent to the corporate limits of the city and subject to annexation under G. S. 1949,13-1602. The city of Topeka is a city of the first class and has adopted a commission form of government (G. S. 1949, 13-1501) and as such is subject to the provisions of G. S. 1949, 13-1601 et seq.
On June 9,1950, the city filed its petition with the board of county commissioners of Shawnee county for a resolution of desirability of annexing that land known as Gage Park lying immediately west of and adjacent to the then existing boundaries of the city of Topeka. On July 3, 1950, the board of county commissioners adopted the requested resolution finding it desirable for the city to annex such land. On August 31, 1951, the city of Topeka enacted an ordinance annexing the land known as Gage Park to the city of Topeka, thereby extending the city limits to include Gage Park. These proceedings were had in accordance with G. S. 1949, 12-501 and 12-502. On September 11, 1951, the city introduced an ordinance to further extend the corporate limits of the city and in that ordinance included land adjacent to and adjoining the north boundaries of Gage Park. This annexation was pursuant to G. S. 1949, 13-1601 and 13-1602. All parties admit that if Gage Park has been legally annexed, then the land adjacent to or adjoining the north boundaries of Gage Park was legally annexed. The parties agree that the question for decision by this court is whether a city of the first class operating under the commission form of government (G. S. 1949, 13-1501 et seq.) has authority to annex territory pursuant to the provisions of G. S. 1949, 12-501 and 12-502, or are G. S. 1949, 13-1601 and 13-1602 found in the commission form of government act the sole and only annexing statutes applicable to such cities.
Plaintiff contends that the city of Topeka, being a city of the first class which has adopted the commission form of government act, is, in the annexation of any additional territory, governed by and limited to the provisions of that act (G. S. 1949,13-1501 et seq.), pertinent provisions of which are: Section 13-1501 provides that all cities of the first class which shall adopt the provisions of the commission form of government act shall be governed by provisions of the act. It is admitted that the city of Topeka adopted the provisions of the commission form of government act. Section 13-1601 provides in part that the corporate limits of any city shall remain as they now are until changed by ordinance as provided in the act. Pertinent parts of section 13-1602-read:
“Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. . . . In adding territory to any city, if it shall become necessary, for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres. . . .”
Defendant contends that even though the city has adopted the commission form of government and is governed by the general laws applicable thereto, such laws do not prescribe the exclusive method for annexing territory but the city has authority also to annex territory under the provisions of the general laws (G. S. 1949, 12-501 et seq.) applicable to any city. Pertinent parts of that act provide:
12-501: “That whenever any city desires to enlarge the limits thereof from territory adjacent thereto, the governing body of such city shall in the name of the city present a petition to the board of county commissioners of the county in which the city is situated setting forth by metes and bounds the territory sought to be so added and asking said board of county commissioners to make a finding as to the advisability of adding said territory to said city.” (Italics supplied.)
Pertinent parts of 12-502 provide for notice of time and place of hearing, description of property sought to be added, names of the owners and provisions for publication and that the commissioners shall hear the testimony as to the advisability of making the addition and if satisfied that the adding of such territory to the city will be to its interest and will cause no manifest injury to any person owning real estate in the territory sought to be added, the commission shall so find, and the governing body of the city by ordinance may enlarge the limits thereof to include the territory so added, and provide further that no such proceedings shall be necessary when the territory sought to be added is subdivided into lots or blocks, but in such cases the city shall have power to add such territory to the city by ordinance, and providing further that no unplatted territory of over twenty acres shall be taken into the city against the protest of the owners thereof. It is apparent from the provisions of the mentioned statutes that they are applicable to any city.
At the outset it may be stated that the legislature has seen fit to establish three classes of cities in Kansas, namely cities of the first, second and third classes, and through the years some laws have been enacted applicable to all cities and others to only one or more classes or to cities within a particular class. Inasmuch as we are dealing with annexation of territory to a city we will limit our discussion to that issue.
Sections 12-501 and 12-502 were originally enacted prior to the enactment of 13-1501 et seq., and at the time of enactment were the only annexation statutes and applied to all cities regardless of class. Under sections 12-501 et seq., cities were limited to one route in annexing any territory, that of petition to the board of county commissioners subject to exceptions contained in the act.
Subsequently a new form of city government was established under cities of the first class, known as the “Commission Form of Government,” and the legislature in 1907 (chapter 114) originally enacted sections 13-1501 et seq., thereby opening another route for annexing territory by way of city ordinances subject to exceptions contained in the act.
It is interesting to note that while both 12-501 et seq. and 13-1501 et seq. have been amended from time to time since their original enactment, and now appear on the statute books as hereinbefore set out, the legislature at no time has seen fit to expressly repeal 12-501 et seq., except insofar as it applies to cities of the third class, and in that instance the legislature specifically so stated (G. S. 1949, 15-lla04):
“That sections 1 [12-501], 2 [121502], and 3 [12-502a] o'f chapter 109 of the Laws of Kansas for 1929 are hereby repealed insofar as the same apply to cities of the third class.”
A careful reading of this enactment discloses that 12-501 et seq. was repealed insofar as it applied to cities of the third class and by inference should remain applicable to cities of the first class operating under the commission form of government. Again the' legislature in 1929 (chapter 109), in re-enacting 12-501 et seq., provided therein that the act should not repeal the provisions of 13-1602:
“That sections 12-501 and 12-502 of the Revised Statutes of Kansas for 1923 be and the same are hereby repealed: Provided, This act shall not repeal section 13-202 and section 13-1602, Revised Statutes of 1923.”
The legislature again at least inferred that the two general laws were to remain operative. If the legislature had intended that 12-501 et seq., an act applying to any city, should not apply to cities of the first class operating under the commission form of "government, it would have said so, as it did in the year 1931 when enacting the annexation laws applicable to cities of the third class (15-lla04).
Without pursuing this matter further, suffice it to say that the legislature has seen fit to enact two general laws, one applicable to any city (12-501 et seq.) and one applicable to cities of the first class operating under the commission form of government (13-1501 et seq.). 13-501 et seq. does not expressly repeal the provisions of 12-501 et seq., and repeal by implication is not favored in this state. (Voran v. Wright, 129 Kan. 601, 284 Pac. 807; 9 West’s Kansas Digest, Statutes, § 158; Hatcher’s Kansas Digest, Statutes, § 111; Tague v. Hudspeth, Warden, et al., 171 Kan. 225, 231 P. 2d 209).
It is recognized that a general legislative grant of powers to cities applies to all cities even though a particular city may not be within the literal wording of the statute. The legislature may in its discretion provide one or more methods for a municipality to accomplish any purpose, and the fact that there may be two general laws which reach the same end does not make either bad or one exclusive of the other. (Johnson County Comm'rs v. Robb, 161 Kan. 683, 171 P. 2d 784.)
We cannot say an act passed by the legislature applicable to any city should not be available to a city of the first class operating under the commission form of government when the general law applicable to the latter city does not repeal or exempt the city from the provisions of the former act. It is always desirable to afford the advantages of any beneficial statute to all classes of cities unless they are definitely and specifically excluded therefrom by the language of the act, and therefore the court cannot say that 12-501 et seq., enacted for the benefit of any city, shall not apply to a city of the first class operating under the commission. form of governmént (13-1501 et seq.), but prefers to follow the more approved policy and recognize the act as including cities under the commission form of government as far as it can be applied to such city without being in conflict with that act. (State, ex rel., v. McCombs, 125 Kan. 92, 262 Pac. 579.)
In the instant case, 12-501 et seq., the law applicable to all cities, provides that no unplatted territory exceeding twenty acres shall be annexed over the protest of the owner. Section 13-1602 provides that an unplatted area in excess of twenty acres cannot be annexed "except when it lies within or mainly within the city limits. Neither of these situations exists in the instant case. Both parties agree the city of Topeka owns Gage Park and that the city petitioned for its annexation. It is clear and agreed to by all parties that 13-1602 does not apply under such circumstances. It is equally clear that 12-501 et seq '. contemplates and applies to the situation heretofore set out, and not having been repealed and not being in conflict with or repugnant to 13-1602, it follows that the city of Topeka rightly prosecuted annexation proceedings under the provision's of 12-501 et seq. The order of the lower court sustaining the city’s demurrer to the plaintiff’s petition is affirmed.
Wedell, J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
These actions were commenced in the probate court of Dickinson county to enforce an alleged trust and for an account ing. Thereafter, pursuant to the provisions of G. S. 1949, 59-2402 (a), they were duly transferred to the district court of that county for trial. Subsequently by stipulation of the parties and order of the court the two cases were consolidated. The parties also stipulated the case as consolidated was to be tried in two parts. Under this stipulation it was agreed the court should first try the question whether there was, and still is, a valid and enforceable trust as claimed by the plaintiffs and hold the accounting phase of the case in abeyance until that issue was determined. Thereupon the cause was so tried. Ultimately the trial court sustained a demurrer to plaintiffs’ evidence based on the ground it failed to prove a cause of action in their favor and rendered judgment sustaining the demurrer and taxing the costs against them. The appeal is from that order and judgment.
The lengthy pleadings filed by the parties are not in controversy and it would merely encumber the record without serving any useful purpose to detail their contents. It suffices to say they join issue on the question whether. John Nicholas Dieter, in his lifetime, became the absolute owner of or held in trust certain real estate located in Clay county, Kansas, and now standing of record in his name, under and by virtue of two warranty deeds, dated December 6, 1926, and reciting a consideration of $1 and other valuable consideration, which were executed and delivered to him by his sister, Anna Margaret M. Cain, and his brother, Charles A. Dieter, since deceased, who, on the date of the execution of such instruments, were the owners of an undivided interest in the real estate therein described.
It appears from the record that the trial court based its ruling on the demurrer upon the premise the evidence adduced by the appellants was not sufficient to meet the rule of this court that an alleged trust must be shown by clear and satisfactory evidence. Since tne propriety of that ruling is the all decisive issue involved on this appeal we first direct our attention to the evidence before the trial court at the time it was made. Omitting much that we regard as of little importance and summarizing the balance as briefly as the state of the record will permit it can be said the evidence adduced in support of appellants’ position the real estate in question was held in trust by John Nicholas Dieter discloses the following facts:
John George Dieter, a resident of Clay County, died testate owning a considerable amount of real and personal property, sub ject to heavy encumbrances. By the terms of his will he gave his wife, who died on September 5, 1921, a life estate in his property and the remainder to his seven children in equal sharés.
Dissension having arisen among the children with reference to the handling of the property belonging to the estate, four of such children, John Nicholas Dieter, Anna Margaret M. Cain, Charles A. Dieter and Frank H. Dieter, purchased the interest of the other three, namely, Justina Wilhelmina Conklin, Katherine C. Need, and Nellie B. Dieter, for the sum of $6,000 each. This agreement was entered into on July 6, 1922. From that date until the estate of John George Dieter was closed on December 7, 1922, and thereafter until the latter part of 1926, the purchasing children, with great difficulty, held the property left by their father practically intact. About that time John Nicholas Dieter, who had assumed the burden of doing so, both financially and otherwise, became dissatisfied with the situation and suggested a change in the arrangement. Eventually he obtained warranty deeds, absolute on their face, to all the real estate in which the three other children had had an interest and thereafter, so far as the record shows, assumed full supervision and control over the property until the date of his death which occurred on October 9, 1949.
So far our recital of the facts has been devoted to matters essential to an understanding of the general factual picture rather than those entitled to special significance in determining whether the appellants’ evidence was sufficient as against the demurrer. Touching the latter and limited to conversations occurring and letters written shortly prior to and after execution of the warranty deeds, to which we have heretofore referred, the record discloses:
1. A letter from John Nicholas Dieter to Mrs. Charles A. Dieter written shortly before the deeds were executed which reads:
“My dear Olive: I am given to understand that you are the objecting in the matter of signing deeds Chas now has and that your objection is due to not understanding the object in view. I could talk to you and explain far better than I can write them, that was my object in wanting to see you folks last Sunday, but of course you were in Wichita and it was impossible. I can understand your point and appreciate the fact you are right in it. I have always maintained to Chas and Frank that you and Ina should be consulted more in the matter since your judgment also Nevadas, are as good if not better in business deals than Chas Frank and mine. They could never see it that way.
“The gist of the whole matter is this, we all realize we have made a grevious mistake in not closing this thing up as Need and Conklin wanted to 4 years ago. However there motive was not actuated by a feeling of justice or fair ness and in that they were wrong. Nevertheless we assumed the load and mus't see it through to the end. Crop conditions and all have been against us and we have all gone through 4 years of hell on account of it.
“I need not tell you how much money has been spend for attorneys fees and interest during this time. You know as well as I.
“We were all willing to sacrifice in order to follow out Fathers wish in the will and keep Frank in business. We have done so, far more than dad would have been willing we should. You and Chas have done your share and so have I.
“I never saw things as rosy as Frank and Chas but told them I was willing to do my part and believe I have more than done so. I have gambled my Equity with the rest and besides have put up nearly $10,000 in cash to keep things going. I can’t keep that up allways. Nor are we making any money in doing so. The interest is' eating us up. Demands for money are coming in and there is no money to meet it, if this is not raised soon suits for foreclosure will start and we will have the added expense of that besides things will be sold at a sacrifice as they allways are and none of us will get anything, what I propose to do and I am truthful in saying I don’t want to do it, but must on account of being the only one able to finance it, is to have this property assigned to me and I will handle it according to our understanding and keep the whole thing in hands friendly to our interest rather than have hostile outside interests give us what they wish. You know I don’t want a cent of money that don’t belong to me and also that Chas and Frank don’t have a better friend on earth than myself. I have backed both far farther than I ever will permit one of my boys to back the other in business. Lillie and I wanted both the boys last spring to assign their equities to us in order to protect them from the suits' pending against them but they would not do it. Think how much safer they would be at present time if they had. I have tried for a long time to get them to put a price on things and sell them as the opportunity came and pay off these obligations, they have allways refused and in fact Chas has never expressed himself as what he though ought to be done one way or another. Now something must be done and there are only two ways possible 1st signing deeds as asked. If deeds are on record 4 months they are valid. If we do this this way we must assume a judgment of $700 to Salina people and another for $150 both of which are against Frank but must be assumed to get clear title. The 2nd was is to bring a suit in partition and try to buy the stuff in. The only reason I suggested the former is because it is cheaper and one could have it ready for market by this fall.
“One of these two courses I must persue and I want you to talk this over with Chas and tell me which you would suggest.
“In either event I want you satisfied. Naturally if the deeds are signed showing a willingness to cooperate in this affair whatever amount is left after debts are paid you will participate in.
“While if the other route is forced upon me of course we must accept the sale as final.
“Now the situation is so acute as to demand some move immediately.
“Now if you do not wish to sign the deeds please mail them to me at once.
“I hope I have explained everything it is very hard for me to write on account of lack of time. Our folks are well and I hope it is the same with you folks. On closing I hope you will believe me when I say I am trying to do the very best for all of us and that it is' an advantage to pull together instead of fight one another as in the past.
“Sincerely,
“J. N.
“Tell Chas the Peoples National are demanding payment on their $1600 note, ask him what he thinks we ought to do about it.
“Also the First National Bank is demanding about $3500 on Oakhill store building by Apr. 1, 1917. There is $900 interest due Feb. 1st on Farm mortgage I am needing help on all this.”
2. Statements by Mrs. Cain, one of the appellants, to the effect that she had received a letter from John Nicholas Dieter in the latter part of 1926 of the same tenor as the one just quoted which she had sent to Chas. A. Dieter but which had become lost, that she relied upon the statements therein set forth and that except for the letter and the faith and confidence she reposed in the writer she would not have executed the deeds.
3. A letter from Nevada P. Dieter, widow and executrix under the will of John Nicholas Dieter, written shortly before the deeds were executed in which the writer advised Mrs. Cain that they had all deeds drawn up ready for Charles and Frank to sign that if they signed them they would send them on to her and that her husband had told Charles over the phone that Mrs. Cain came first after expenses were out, that he came next and the two boys could have what was left.
4. A letter dated January -, 1927, written by Nevada P. Dieter to Mrs. Cain stating in substance that her husband had told Charles over the phone that he would handle the property as best he could — that he would first take out his money and interest, then Mrs. Cain would be paid her share and if any was left he would divide with the boys equally.
5. Another letter written by Nevada P. Dieter to Mrs. Cain dated January 31, 1927, in which she enclosed the deeds, suggested that they be signed and returned, and then said:
“I think you fully understand that Dr. will take this over and pay up the indebtedness — and then will try to get a new loan on parcels and dispose of it if at all possible — He will then take out his money and interest if any over — then you are to get your share — and then if any is left he will divide with the boys — Now you understand this is his agreement with the boys and not in any way binding on me — for I would never give either one of them a penny — .”
6. Testimony by Mrs. Cain, while testifying as a witness in her own behalf, on direct examination to the effect she would not have signed the deeds had it not been for the promises made by her brother, that she had overheard conversations he had had with her husband, her daughter, and her son, in 1931 and in 1936 or 1937, in which she took no part, wherein he stated he had her interest in mind and would take care of her interests. Also answers made by her in response to questions on cross-examination as follows:
“Q. Now isn’t it a fact, the real honest to goodness fact, Mrs. Cain, that when you folks deeded this property to Doctor Dieter in 1926, that you thought he was the owner of it and he became the owner of it? A. No.
“Q. What did you think was the effect of it? A. He was acting in the capacity of a trustee for the four of us. We were part owners.”
“Q. It is true, isn’t it, Mrs. Cain, that when you folies gave Doctor Dieter those deeds in 1926 that you knew down deep in your innermost soul that you had no further right, title, or interest in that land? A. No, I did not. I signed them because of the assurance that he gave me that I had a fourth interest in it and that was the reason that I signed them.”
“Q. All you ever expected to get out of it was some consideration if the doctor would sell it, is that it, from your testimony? A. I expected to get one-fourth of it.
“Q. You expected to get one-fourth of it? A. Whether he sold it or whether he wanted to pay me that.”
“Q. You deeded it over to him? A. We deeded it over to him. The reason — I would never have deeded it to him if he hadn’t assured me that I was interested one-fourth in that. I was to have as much as the other girls, and even if there wasn’t anything left for him, I was to get my share.”
7. Olive Dieter testified that neither she nor her deceased husband, Charles A. Dieter, would have executed the deeds had it not been for the letter heretofore quoted. On cross-examination she was interrogated as to whether in executing such instruments she intended to convey John Nicholas Dieter the land with the idea it would be his thereafter. In response she answered “no, it was his to take care of until prices got better and make settlement with the heirs.”
8. Testimony by at least six other witnesses from which it can be fairly inferred that they had had conversations with John Nicholas Dieter or overheard conversations he had had with others in their presence wherein he recognized his sister Mrs. Cain had an interest in the estate and that he was taking care of her share. The number of conversations testified to by some of these witnesses varies, some having had or heard but one conversation while others had or heard as many as three or four. Frank H. Dieter, one of such witnesses, stated that on many occasions his brother John Nicholas Dieter told him he wanted to get settled up with Mrs. Cain and that the last time he heard him make such a statement was at a time when his brother had been bedfast for several years and Mrs. Cain was at the home to visit him.
Appellants insist that in view of the foregoing evidence the trial court erred in sustaining the demurrer. Before giving consideration to the merits of this contention it seems advisable to first point out that we are called upon to review the sufficiency of evidence as against a demurrer, not to determine the propriety of a decision on the merits of the case. Therefore, it is well to keep in mind the well established principles governing a ruling on a general demurrer to evidence. This rule is well stated in Staab v. Staab, 160 Kan. 417, 163 P. 2d 418, also an action to establish a trust and where a like ruling was involved. At page 419 of the opinion in that case it is said:
“. . . Such a demurrer tests only the legal sufficiency of the evidence. In passing on the demurrer courts cannot weigh evidence; they must disregard all unfavorable evidence and consider only evidence favorable to the parties adducing it; they must give full credence to the evidence adduced and construe all inferences which reasonably may be drawn therefrom in the light most favorable to the parties adducing it. If the evidence, considered in harmony with these principles, fairly tends to establish a cause of action or defense, the demurrer should be overruled. (Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 Pac. 584; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; In re Estate of Bond, 158 Kan. 776, 781-782, 150 P. 2d 343.)”
Heretofore we have called attention to the fact the trial court indicated it was sustaining the demurrer because the evidence was not sufficient to meet the rule that an alleged trust must be shown by clear and satisfactory evidence. This, we believe, is where the court first committed error. We have held that is not the test to be applied in determining the sufficiency of evidence as against a demurrer. See Staab v. Staab, supra, where the subject is discussed and it is held:
“It is true we consistently have held the evidence of an oral contract of this character pertaining to land must be such as to raise a ‘convincing implication that the contract was actually made and that it must satisfy the court of its terms. Simply stated, we have said such a contract must be established by clear and satisfactory proof whether the evidence be direct or circumstantial. (Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665; In re Estate of Bond, 158 Kan. 776, 150 P. 2d 343.) That character and extent of proof is properly required by a trial court after the case is submitted for final decision upon its merits. The evidence, however, need not reach that high degree of definiteness and certainty when tested by demurrer. When so tested the general principles applicable to a ruling on a demurrer, previously stated herein, control. . . .” (pp. 419 and 420.)
Nevertheless, since the reason given for a ruling on a demurrer is of little consequence if it can be otherwise upheld, there remains the question whether the evidence, viewed in the light of the rule to which we have heretofore referred, was sufficient to withstand the attack made against it.
Before analyzing the evidence it should be said that under the existing conditions and circumstances we see no reason for writing an essay on the subject of trusts. It suffices to say that generally speaking a trust, when not qualified by the word “charitable,” “resulting,” or “constructive,” is a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it (Restatement, Trusts, Ch. 1, Sec. 2) and that an express trust may be created and must be deemed to be established by the evidence, when it is attacked by demurrer, if the evidence manifests an intention to create it, regardless whether that manifestation be established by written or spoken words or by conduct. (Restatement, Trusts, Ch. 2, Secs. 22, 24, Ch. 12, p. 1246.)
Tested by the foregoing rules, and given the benefit of all inferences to which it is entitled under the principle, governing a ruling on a general demurrer to evidence, we have little difficulty in concluding that the evidence adduced by appellants, regardless of what credence it may be entitled to when weighed by the trier of the facts, discloses that John Nicholas Dieter acquired title to the real estate in question under conditions and circumstances which not only manifested an intention, but obligated him, to hold it in trust and that thereafter, without ever having repudiated that obligation, he stated repeatedly that he so held it for at least one of the appellants. The result is that as against a demurrer the trust relied on by appellants was established and the trial court should have overruled the demurrer, proceeded with the cause and, after weighing all evidence adduced by the respective parties, rendered such judgment as it deemed the facts and the law warranted.
In an attempt to forestall the foregoing conclusion appellees contend that even if appellants’ evidence be held sufficient to establish a trust such evidence disclosed their right to enforce it was barred by the statute of limitations and laches. We do not agree. The statute of limitations did not begin to run until there was a breach of the contract by repudiation of the trust (Staab v. Staab, 158 Kan. 69, 145 P. 2d 447). The fact, as appellees suggest, the evidence disclosed that on August 5, 1938, Mrs. Cain wrote John Nicholes Dieter suggesting she should have something over his signature defining her interest and that he failed to reply thereto does not warrant this court in concluding, as a matter of law, that the trust was repudiated. Absent repudiation there is no merit to the contention the evidence shows the appellants’ claims are barred by laches for it is conceded the real estate had not been sold and there is ample evidence in the record to the effect the trust was to continue until it was disposed of.
The judgment is reversed and the cause remanded for further proceedings. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action on a policy of insurance issued by a mutual hail insurance company organized under G. S. 1949, 40-1501, et seq. From the trial court’s action in overruling defendant insurance company’s demurrer to plaintiff’s second cause of action, defendant appeals. Appellee will hereinafter be referred to as plaintiff and appellant as defendant or insurance company.
Plaintiff’s petition sets forth two causes of action against defendant. The first cause of action alleges his residence, that the defendant is a mutual hail insurance corporation organized and existing by virtue of the laws of the state of Kansas for the purpose of insuring crops against loss by hail; that on June 29, 1950, for valuable consideration, defendant made, executed and delivered a policy of insurance, a copy of which was attached to the petition, thereby insuring plaintiff against loss or damage traceable directly to hail to the extent of $1,200 upon his growing crop consisting of eighty acres of pinto beans, describing the property whereon situated; that plaintiff was the sole owner of the beans insured; that on August 28, 1950, while the policy was in force, the crop of pinto beans was completely destroyed by hail; that plaintiff fulfilled all conditions of the policy; that on September 4, 1950, defendant through its agent and adjuster Mr. Jacka, inspected the damaged crop of beans and estimated the amount of damage and loss thereto directly traceable to hail; that plaintiff demanded the full amount of insurance coverage; that plaintiff and defendant’s agent were unable to agree as to the amount of damage to the beans; plaintiff demanded 100 percent loss and the agent of the company offered a much smaller amount in settlement of the damage; that plaintiff had received nothing from the loss and defendant refused to pay said' damage; plaintiff asked to recover $1,200, the face of the policy, as damage. No demurrer was lodged against this cause of action.
Plaintiff’s second cause of action repleads the allegations of the first cause of action and further states that at the time of the attempted adjustment September 4, 1950, when plaintiff orally demanded 100 percent loss under the insurance policy and the agent refused to pay that amount, defendant by and through its agent employed plaintiff orally to harvest the beans and agreed that if plaintiff would harvest said beans the defendant insurance company would make up any loss plaintiff might incur by reason of harvesting the beans; defendant’s agent stated that he did not know how to adjust the loss and by reason thereof the above agreement was made; that plaintiff in accordance with the alleged agreement harvested the beans but that the beans after harvest could not be disposed of by reason of being so damaged by hail; that plaintiff expended the sum of $540 in harvesting the beans; that he demanded payment of same from the insurance company as harvesting expenses incurred by him in performance of his oral contract made with the company through its agent Jacka. Defendant refused to pay said sum, and the second cause of action closed with a prayer for the $540 cost to plaintiff in harvesting the beans.
Defendant demurred to plaintiff’s second cause of action, which demurrer was by the court overruled, and it is from this order that defendant appeals to this court.
Plaintiff incorporated the policy of insurance in his petition. This policy makes plaintiff’s written application for hail insurance and the bylaws of the defendant insurance company a part of the policy of insurance. <
Plaintiff’s written application for hail insurance to the defendant company discloses that he made application for membership in defendant’s company and for indemnity against loss or damage to his growing crop by hail for the season 1950 covering the eighty acres of pinto beans described in his petition; that insurance coverage was not to exceed $15 per acre nor a total amount on the eighty acres of beans to exceed $1,200; and that he submitted therewith $132 as premium. The application provided among other things:
“I understand that this is a mutual company and I agree to be governed by the articles of incorporation and by-laws of said company, which together with this application and the policy issued thereon, shall constitute the contract between the said company and myself. ... I further agree that the company shall not be bound by any representation or statement made by its agent or representative which is not contained in said by-laws.”
Pertinent parts of the bylaws of the defendant company contain the following provisions:
Sec. 2: “The object of this Company shall be to insure its members against loss or damage to their growing crops by hail only.
Sec. 3: “Any person wishing to become a member of this Company may do so by making application for insurance against loss or damage by hail to his growing crops on blanks furnished by the Company, and paying the full amount of the premium in cash or note, and agreeing to be governed by the By-Laws, Rules, and Regulations of the Company.
Sec. 8. “The Board of Directors shall have authority to enact By-Laws, Rules, and Regulations, and perform all other acts for the efficient management and working of the Company.
Sec. 20. “. . . This Company’s liability is limited to loss or damage directly traceable to hail only. This Company shall not be hable for loss or damage to any crop herein described, nor any part thereof, by causes other than' hail; nor by causes combined with hail. . . .”
Plaintiff contends that Mr. Jacka was defendant’s adjuster and agent and therefore had implied authority to bind defendant company on a contract to pay plaintiff for harvesting the beans in order to determine the amount of plaintiff’s loss due to hail. Nothing in the bylaws of the defendant company authorized Jacka, the adjuster or agent, in adjusting plaintiff’s hail loss, to waive or abrogate the bylaws. It may be noted here that plaintiff’s contract was not with a commercial insurance company but with a mutual company, and a different rule is applicable to mutual insurance companies organized under G. S. 1949, 40-1501, et seq., such as we have in the instant case. An analysis of the fundamental distinctions and the principles underlying the distinctions between commercial insurance companies and mutual insurance companies may be found in Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956; Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214; Jackson v. Republic Mutual Fire Ins. Co., 138 Kan. 571, 27 P. 2d 296; and Lohr v. Farmers Alliance Ins. Co., 144 Kan. 776, 62 P. 2d 837.
At the outset it may be stated that a mutual insurance company is a favorite of the statutory law. In speaking of mutual companies organized under our statutes, such as the company in the instant case, this court said in Kennedy v. Farmers Alliance Ins. Co., supra:
“These companies are organized by property owners who desire mutually to insure the property of their members. Before a person can have his property insured by such a company he must become a member of it and join with other members in their mutual obligations. In a sense he is both the insurer and the insured. The premiums paid by members constitute the fund from which losses and expenses are paid; the members share in the profits in proportion to their interest, and control and regulate the affairs of the company (32 C. J. 1018). The mutuality of obligation, of insurance, and of all the advantages, is the main and essential feature of such a company. (32 C. J. 1019.)”
In the instant case, no policy of hail insurance was issued except on written application and the persons insured formed the membership of the company (G. S. 1949, 40-1503); the statutes also provide that members of mutual companies elect their officers (40-1511); that the board of directors shall manage and control corporate affairs, and adopt necessary bylaws which shall be submitted to the commissioner of insurance for approval (40-1510); the company may issue policies to its members on growing crops against loss or damage by hail and every policy shall contain a printed copy of the application and a copy of the bylaws which shall become a part of the contract between the company and the assured and all policies of the company shall be signed by the president and secretary (40-1512); and that all losses shall be adjusted by the company promptly upon receipt of the notice thereof in compliance with the provisions of such policy, and all adjusted losses shall be paid prior to November first of each year (40-1504).
The bylaws become a part of the contract of insurance and are binding on the members insured. The members are conclusively presumed to have knowledge of the bylaws and are estopped from questioning a bylaw which to their knowledge has been generally acted on in transacting the business of the company during the time they have been members. (44 C. J. S. 653, § 107b; Kennedy v. Insurance Co., 96 Kan. 598, 152 Pac. 639.)
Plaintiff argues that Jacka, being an adjuster or agent of the company, had authority to make a contract with the plaintiff on behalf of the company to harvest the beans and pay plaintiff for such harvesting. Assuming such agreement was made by the plaintiff and Jacka, there is nothing in the entire contract between the parties which consists of the policy, the application and the bylaws, which would authorize Jacka to make such a contract or to waive or abrogate the bylaws. It is elementary law that an agent, a director of a corporation, or an officer, has no authority to obligate the corporation by the mere fact that he is such agent, director or officer. The corporate authority is exercised by the board of directors (40-1510), not by individuals comprising its personnel. (Jackson v. Republic Mutual Fire Ins. Co., supra.)
In conclusion it may be stated that plaintiff’s second cause of action discloses on its face that plaintiff made application to become a member of the defendant company; that as such member he agreed to be bound by the terms of the policy, application, and bylaws, which limited the liability of the company in an amount not exceeding $15 per acre or a total of $1,200 on the entire eighty acres of beans; that he had knowledge of such bylaws and that the company would not be bound by any representation or statement made by its agent or representative not authorized by the bylaws; that the policy covered solely any loss occasioned to the crop by hail and made no provision for authorizing an agent of the company to make a separate and distinct contract for harvesting the crop.
To allow recovery on plaintiff’s second cause of action would amount to an extension of the limit of liability under the policy and a change by court action in the contract entered into between the parties, and would allow plaintiff as a member of a mutual hail insurance company to secure special privileges and advantages over his co-members in direct violation of the bylaws formed by such company to control the liability of its members. We are of the opinion that the demurrer to plaintiff’s second cause of action should have been sustained.
The judgment of the lower court is reversed and the case remanded with directions to sustain defendant’s demurrer to the second cause of action set forth in plaintiff’s petition. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to prohibit and enjoin the Workmen’s Compensation Commissioner of the State of Kansas from proceeding with a claim for compensation filed by an injured workman. From an order overruling his demurrer to the petition the Commissioner has appealed.
The factual background as alleged in the petition is this:
Plaintiff is a foreign insurance corporation. Defendant is the Workmen’s Compensation Commissioner of the State of Kansas, hereinafter referred to as the Commissioner.
In June, 1950, one Wyers, hereinafter referred to as the employee, a resident of Kansas City, Mo., entered into a contract of employment in the state of Missouri with the Guaranteed Roofing and Siding Company, Inc., hereinafter referred to as the employer.
In July, 1950, plaintiff executed and delivered to the employer its written policy of workmen’s compensation insurance whereby it contracted to pay to any injured employee of such employer any and all final awards of compensation under the Workmen’s Compensation Law of Missouri.
On September 15, 1950, the employee, while thus employed by the employer, sustained personal injuries at Manhattan, Kansas.
The contract of insurance was in force on that date.
On or about January 19, 1951, the employee filed with the Mis- ' souri Division of Workmen’s Compensation his claim for compensation, under the laws of that state, for the injuries he sustained in Kansas. That claim is still pending.
On or about January 30,1951, the employee filed with the defendant Commissioner his claim for compensation under the laws of Kansas, based upon the same injury for which he previously had filed a claim in Missouri under the law of that state. In both claims the employer and plaintiff were named as respondents.
The claim for compensation under the Kansas law was set down for hearing by defendant Commissioner for May 21,1951, and plaintiff’s action was filed two days prior thereto.
After setting forth the foregoing facts- the petition alleges that as the contract of employment, between the employee and employer was made in the state of Missouri the rights and liabilities of the respective parties are governed by the Workmen’s Compensation Law of that state, irrespective whether the injuries should occur within the state of Missouri or elsewhere, and therefore defendant Commissioner has no jurisdiction to hear and determine the claim now pending before him, either under the laws of Kansas, which have no application whatsoever, or under the laws of Missouri, which he is not empowered to administer.
It is further alleged that plaintiff has no adequate remedy at law; that a remedy by appeal, or by any other method except by a writ of prohibition, is inadequate and insufficient in that any other method would deprive plaintiff of having the claim of the employee determined under the laws of Missouri by the Missouri Division of Workmen’s Compensation, where jurisdiction first attached and still remains; that defendant Commissioner is assuming to exercise powers not granted by law and is attempting to make an unauthorized determination of the respective rights and liabilities of the employee, the employer' and plaintiff.
It is further alleged that a hearing and determination of the claim pending in Kansas would result in a denial of full faith and credit to the laws of Missouri, guaranteed by the Federal Constitution, since defendant Commissioner is not a judicial officer, but, on the contrary, is an administrative officer merely exercising quasi-judicial functions and therefore has no power to determine questions arising under the federal constitution.
The prayer of the petition is that the court issue its writ of prohibition directed to defendant Commissioner, commanding him to desist and refrain from attempting to exercise further jurisdiction of the claim filed before him; that on final hearing the claim be ordered dismissed, and that plaintiff have such other and further relief as is equitable and just.
The lower court issued a prehminary writ of prohibition and ordered the Commissioner to show cause why he should not be restrained from proceeding further with the claim and why it should not be dismissed.
Defendant Commissioner filed a demurrer to the petition on the grounds that the district court had no jurisdiction of the subject matter of the case and that the petition failed to state a cause of action.
From the record it appears that in the lower court the arguments of counsel and the scope of the decision were limited to the first ground of the demurrer — namely, under the facts alleged did the court have jurisdiction of the subject matter of the action?
The demurrer was overruled and defendant Commissioner was granted twenty days within which to answer. This appeal followed.
The contentions of the parties may be summarized as follows;
Defendant Commissioner contends that the Kansas Workmen’s Compensation Act establishes its own procedure and furnishes a remedy which is substantial, complete and exclusive from the inception of a claim to final judgment thereon; that it confers full jurisdiction and power upon the Commissioner to supervise and administer the Act; that it confers upon the Commissioner original, exclusive jurisdiction in all cases properly before him and compensable under the Act, and that the Act confers on district courts jurisdiction to hear only those cases which have been heard by and appealed from the decision of the Commissioner. In support thereof he directs our attention to Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456, 127 A. L. R. 461, and the many prior decisions of this court cited therein.
Plaintiff, on the other hand, contends that as the contract of employment was made in the state of Missouri (which fact is admitted by the demurrer) the injuries sustained would be compensable under the law of that state, irrespective of where they were sustained, citing Daggett v. K. C. Structural Steel Co., 334 Mo. 207, 65 S. W. (2d) 1036; that as an “inferior tribunal” defendant Commissioner is subject to the control and supervision of the district court by virtue of G. S. 1949, 20-301; that prohibition by the district court is the proper remedy to prevent errors and abuses under a set of facts such as here, and that it has no adequate remedy at law in that unless the Commissioner be enjoined from proceeding with the claim in question the result would be that all parties would be put to the time and expense of a complete trial on the merits, notwithstanding the fact the Commissioner has no jurisdiction whatsoever. And, finally, it is argued that in the recent case of Keltner v. Swisher, 168 Kan. 184, 211 P. 2d 75, this court held that the Kansas Workmen’s Compensation Act was not applicable where the contract of employment was made in Missouri.
In passing, we take note of the fact that neither the employee nor the employer is a party to this action — the action is one solely by the employer’s insurance carrier against the Commissioner.
While it is true the Matlock case, supra, is not precisely in point with the question before us in that there it was conceded the employment and injury were within the Workmen’s Compensation Act, nevertheless we think the general rules there announced are sound and have application to the question here presented. No attempt will be made to review all that was said in that decision, but it is sufficient to say the rule is well settled that the Workmen’s Compensation Act establishes a procedure of its own; that such procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases; that the Commissioner is compelled to hear all evidence on all points and on all branches of the case in order that the district court may exercise its right and duty on appeal, and that until this has been done and a ruling made the case is only partly heard and the appeal to the district court is ineffectual. Nowhere in the record before us is it alleged that the question of the Commissioner’s jurisdiction to hear this claim has ever been presented to that official for his determination. And yet, the practical effect of the lower court’s ruling is to usurp his prerogative in that respect.
In fact, carrying plaintiff’s argument to its ultimate conclusion would mean that an employer or insurance carrier would thus be able to enjoin the Commissioner from hearing a claim on the ground he had no jurisdiction because of the fact an alleged injury did not arise out of and in the course of the employment. The fallacy and unsoundness ef permitting such procedure are self-evident.
With respect to plaintiff’s reliance on the case of Keltner v. Swisher, supra, as being authority for holding that the Kansas Workmen’s Compensation Act would not be applicable where the contract of employment was made in Missouri, we think plaintiff misconstrues the real issue in that case as contrasted with the question now before us. There the claim by the employee was heard by the Commissioner from beginning to end, and on appeal to the district court that court, after reviewing the record before the Commissioner, found that the contract of employment was made in Missouri arid therefore denied recovery under the Kansas law. On appeal to this court it was held that whether the contract of employment was made in Kansas or Missouri was a question of fact to be determined by the trier of the facts, and that a finding thereon made by the district court upon substantial but conflicting evidence cannot be disturbed by this court on appeal. It is true that the application of the Kansas law, where the contract of employment was made in Missouri, is inherent in that decision, and it is also true that in the instant case it is alleged the Kansas law is inapplicable because the contract of employment was made in Missouri. On the other hand, such- allegation concerning the nonapplication of the Kansas law amounts to no more than a mere legal conclusion rather .than a statement of fact.
As we view the question, we are not concerned here with the substantive rights of the parties, that is, the right of the employee to be compensated under the Kansas law for injuries sustained in this state where the contract of employment was made elsewhere. It may be conceded that under such circumstances he is not, but the question here is more one of procedure and jurisdiction, and we think plaintiff’s theory that the district court had jurisdiction in the first instance is erroneous.
We have not overlooked plaintiff’s other contentions, particularly with reference to the powers granted to district courts over inferior courts and tribunals by G. S. 1949, 20-301, but in view of our decision they require little discussion.
By the provisions of G. S. 1949, 74-710, and of the Workmen’s Compensation Act (G. S. 1949, 44-501 to 572) the Commissioner is clothed with full power and authority to hear and determine any and. all questions arising under the Act. Included in'those powers is the right to hear and decide any question concerning his jurisdiction to hear such claims as may be filed.
And neither can we agree with plaintiff’s argument that it has no adequate remedy at law. It does have an adequate remedy, as to the very issue here involved — by appeal, after a full adjudication by the Commissioner, just as was done in the Keltner case, supra.
As before stated, neither the employee nor the employer was made a party to this action. True, for the purposes of the demurrer, the allegation that the contract of employment was made in Missouri is admitted, but, should the rights of third parties, not even parties to the action, thus be adjudicated, and should the plain and obvious meaning and intent of the Workmen’s Compensation Act thus be circumvented by an action such as this? We think not.
In conclusion, our holding is that the lower court had no jurisdiction of the subject matter of the action. Its ruling is therefore reversed with directions to sustain the demurrer to the petition.’
Thiele, J., concurs in the result. | [
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The opinion of the court was delivered by
Wedeel, J.:
This action was instituted in the probate court by a guardian of an incompetent person to open and vacate a judgment of final settlement and distribution of a decedent’s estate. The ultimate relief sought was to set aside a deed to 200 acres of land executed and delivered by the alleged incompetent to the decedent in 1938, the land having been inventoried after decedent’s death in 1945 as a part of his estate and assigned to appellees.
The issues in the probate court were joined by a petition, answer and reply. The nature of the primary issues will appear in connection with the contentions of the parties and a narrative of the pleadings is unnecessary.
The probate court sustained a demurrer to plaintiff’s evidence. Plaintiff appealed to the district court which likewise sustained the demurrer. From that ruling the plaintiff appeals to this court.
This is the second chapter of the same controversy in this court. (Hoppas v. Bowman, 167 Kan. 761, 207 P. 2d 950.) A portion of our opinion in that case will receive further attention later. Presently it will suffice to say the first action was commenced by the same guardian directly in the district court long after the judgment of final settlement of the decedent’s estate had been rendered and the property now claimed by appellant, together with all other assets of the estate, had been distributed according to law. That action was brought to obtain the same identical relief sought in the present action.
In order to avoid confusion we probably should say now that all statements contained in the syllabus of the first case do not con stitute established facts in the instant case. The statements contained therein constituted allegations in appellant’s petition and those allegations were agreed upon in the former case only for the purpose of determining whether the district court had original jurisdiction of the action. The district court held it did not and on July 9, 1949, this court affirmed the judgment and ordered that the action in the district court be dismissed.
After the decision and in October, 1949, the instant action was instituted in the probate court. That was approximately two years and nine months after the judgment was rendered.
Appellant’s evidence, in the instant case, also disclosed the following material facts:
The father of William E. Hoppas executed the deed in question directly to William in November, 1932, and the deed was recorded during the same month; in August, 1938, William deeded the 200-acre tract of land to B. S. Bowman; that deed was recorded in September, 1938; during decedent’s lifetime he was in the uninterrupted possession and control of the land and obtained the rents and profits therefrom; no action was instituted against him during his lifetime to set aside the deed; after the death of the grantee, Bowman, in December, 1945, the land was inventoried as a part of the Bowman estate; on final settlement and distribution of his estate in January, 1947, the land was assigned to appellees, Bowman’s heirs.
Appellant’s evidence further disclosed:
About seventeen months after the date of final settlement and distribution Moss J. Hoppas, a brother of William, filed a petition in the probate court to have William declared an incompetent and in June, 1948, he was found and adjudged to be an incompetent person, incapable of handling his business or private affairs for the past forty years; in October, 1949, approximately sixteen months after that adjudication, and about two years and nine months after the judgment of final settlement and distribution of the Bowman estate the instant action was instituted in the probate court.
No demand for the land had been made in the probate court until the time previously indicated. There was no evidence the probate court, the administrator or anyone connected with or interested in the estate had any knowledge of decedent’s incompetency or that it was claimed the alleged incompetent owned the land and no personal service was had on the incompetent during the administration proceedings.
The record discloses the district court realized the grantee’s lips were sealed by death and that he was unable to explain his version of the transaction with respect to the actual consideration for the deed or his lack of knowledge of William’s incompetency. That court, however, accepted the adjudication of incompetency as a settled fact.
The district court found appellant had not established his alleged facts that the deed to B. S. Bowman was without consideration or that B. S. Bowman knew William was an incompetent. In addition to such failure of proof, the court sustained appellees’ demurrer to appellant’s evidence on the ground no demand or claim to the land had been made within the time prescribed by the 1939 probate code and that appellant was not entitled to have the final judgment of the probate court set aside.
We interrupt to say that in their brief appellees state the following additional facts will not be denied: On September 15, 1933, William E. Hoppas obtained from the Dresden State Bank a loan of $2,500 and secured the same with a mortgage on this 200 acres of land; the mortgage was filed and recorded; default was made in the payment of the note; the taxes upon the land were not paid and such default continued from the time of the execution of the note and mortgage until 1938; upon receipt of the deed Bowman paid the note, which William owed the bank, together with the accrued interest and taxes; the indebtedness of William to the bank was canceled and the mortgage given to secure its payment was released of record.
Counsel for appellant do not categorically deny the statements contained in the preceding paragraphs but do object to their consideration by this court for the reason that such facts were not disclosed by appellant’s own evidence against which appellees’ demurrer was interposed. Appellant, of course, has a right to make such objection and in view thereof we shall not consider the statements contained in the preceding paragraph.
Without considering such statements we do, however, agree with the district court that appellant’s evidence did not show failure of consideration for the deed or Bowman’s knowledge of the grantor’s incompetency. But laying aside both of those factors the pivotal question remains whether the failure of William, or someone in his behalf, to make a claim or a demand for a portion of decedent’s estate within the time prescribed by the probate code precludes William or his guardian from setting aside the order of final settlement and distribution and the deed in question under the circumstances heretofore stated?
It is, of course, well established that a demand or claim to all or any particular portion of a decedent’s estate under the facts alleged on the theory claimant had title thereto and was the owner thereof is a demand within the purview of the nonclaim statute of the probate code (G. S. 1949, 59-2239) and as such must be filed in the probate court within nine months after the first published notice to creditors or it is barred. (Malcolm v. Larson, 158 Kan. 423, 427, 148 P. 2d 291, and cases therein cited.) To the same effect are Gantz v. Bondurant, 159 Kan. 389, 393, 155 P. 2d 450; Simmons v. Gill, 161 Kan. 123, 166 P. 2d 574.
Appellant argues the judgment of the probate court which assigned the property to appellees, the decedent’s heirs, was void for the reason the probate court had no jurisdiction of the subject matter because the deed from the incompetent to Bowman was void and that the court had no jurisdiction of the person of William E. Hoppas, the owner of the land. We think appellant confuses jurisdiction of the court over the subject matter with the power of the court to render a correct or an incorrect judgment concerning the subject matter. This property had stood of record in the decedent’s name since 1938. Obviously it was inventoried as a part of decedent’s estate. The probate court had complete jurisdiction of all property so inventoried until it was shown not to be a part of such estate by appropriate proceeding under provisions of the probate code. Furthermore that court possessed not only the power but it was its duty to distribute and assign all property so inventoried. When the decree became final it was further required to transmit a certified copy of such assignment to the county clerk whose duty it was to enter the same on the transfer record in his office. (G. S. 1949, 59-2249.) We think, under the circumstances it cannot be said the probate court had no jurisdiction of the subject matter.
There is no showing of a failure to comply with regular statutory provisions concerning notice of hearings as to any matter connected with the administration of decedent’s estate. Appellant was not a party but an entire stranger to the probate proceedings. The probate code does not require personal notice of hearings to such persons and surely not where they, according to the public records, previously executed and delivered a deed to the decedent. Other wise it would be necessary to obtain personal service on all grantors in a decedent’s entire chain of title with respect to every piece of real property which stood of record in his name at the time of his death. That is not the law. The judgment of final settlement and distribution was not void. If voidable it was necessary to avoid it in the manner provided by law.
The former appeal to this court involved the single question whether the district court had original jurisdiction to cancel the deed and to quiet title to the land. We held it did not. (Hoppas v. Bowman, supra.) However, in an attempt to be helpful to the parties and counsel the opinion further stated the probate court decree of final settlement and distribution was conclusive and that appellant’s action was barred. In so concluding we directed attention to the fact the old nonclaim statute, G. S. 1935, 22-702, contained a clause saving to “infants, persons of unsound mind” a right to make a demand against a decedent’s estate one year after the removal of their disability but that in enacting the 1939 probate code the legislature eliminated the former saving clause to “infants, persons of unsound mind” and required all demands of every kind and character (including those of incompetents) to be filed within' nine months after the date of the first published notice to creditors. (G. S. 1949, 59-2239.) We concede the latter portion of our former opinion was obiter dictum. Upon re-examination of the question we have concluded it was a correct statement of the law and we approve it.
Obviously it is always the purpose and desire of courts to zealously guard and protect the rights of minors and incompetents. Undoubtedly the framers and enactors of the new law which eliminated the former saving clause to such persons gave the subject serious consideration. Manifestly that was not done in the dark but in the light of careful consideration and deliberation. Whether the change was a wise one is not our present problem. Courts are. not permitted to arbitrarily nullify the legislative will. The wisdom of legislative policy is not a concern of the courts. Their function is to ascertain the legislative intent and to uphold and make it effective if reasonably possible to do so. (Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357.) No demand for or claim to the land was made as required by law and it seems the instant opinion might be ended without further discussion.
Appellant, however, contends he had a right to have the decree of final settlement and distribution opened and vacated although the petition therefor was not filed until approximately two years and nine months after the final decree. In support he cites G. S. 1949, 59-2213, which reads:
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by section 605 ... of the code of civil procedure.”
That section requires an examination of G. S. 1949, 60-3016 and sections 60-3007 to 60-3015, inclusive. The pertinent part of G. S. 1949, 60-3007 reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.
“Seventh. For unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
The pertinent part of G. S. 1949, 60-3008 reads:
“Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivision four, five and seven of the next preceding section must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after removal of such disability.”
G. S. 1949, 60-3013, however, provides:
“A judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action on which the judgment is rendered; or if the plaintiff seeks its vacation, that there is a valid cause of action. . . .”
The purpose of the last quoted section is to avoid the useless setting aside of a judgment where such course could accomplish nothing more than the opportunity for the rendition of another judgment of like effect. (Burris v. Reinhardt, 120 Kan. 32, 34, 242 Pac. 143.) So in the instant case it would constitute a futile gesture to set aside the final judgment of the probate court after appellant's own evidence disclosed he had no defense to the judgment by reason of his failure to make the demand in the manner and within the time expressly required by the new nonclaim statute. It is, therefore, unnecessary to consider whether appellant’s evidence disclosed a defense to the judgment if the demand had been made in time. Since the demand was not made in time it is wholly im material how good his defense otherwise might have been. Where a cause of action discloses on its face it is barred by a statute of limitations, of course, the defect may be taken advantage of by demurrer.
In referring to the civil code it must also be observed it contains a mandate relative to statutes of limitation which are applicable to special cases. G. S. 1949, 60-303 reads:
“Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation."
In construing that statute we have held the nonclaim statute of the probate code was a special statute governing demands against estates of decedents and that it, and not a general statute of the civil code, controlled such claims or demands. (Gebers v. Marquart, 166 Kan. 604, 610, 203 P. 2d 125.)
Another special statute of limitations of the probate code must be noted. It pertains specifically to the opening of judgments in the probate court where such judgments involve real estate. (G. S. 1949, 59-2252.)
On the other hand G. S. 1949, 59-2213 is a general statute pertaining to the vacation or modification of orders, judgments and decrees. G. S. 1949, 59-2252, as stated, is a special statute pertaining solely to judgments affecting real estate. It contains its own special limitations of time for opening those particular judgments, where the service is by publication in a newspaper, and it provides such probate court judgment or decree may be opened or set aside and a party be let in to defend within one year after the date of the judgment or decree. The same statute further provides if the real property, in consequence of such judgment or decree, is passed to a purchaser in good faith that title thereto shall not be affected by proceedings under such section after the expiration of six months.
Although this statute says, “A party against whom a judgment or decree has been rendered,” (our emphasis) it appears that includes a person who was not a defendant in the proceeding. Such was the interpretation placed on a similar statute, G. S. 1949, 60-2530 (Cheyenne County v. Walter, 83 Kan. 743, 745, 112 Pac. 599; Wyandotte County Comm'rs v. Axtell, 134 Kan. 304, 306, 5 P. 2d 1078), after which G. S. 1949, 59-2252 was patterned. See 2 Bartlett’s Kansas Probate Law and Practice, § 1164, and footnotes.
No reason, therefore, appears why appellant was not required to have his rights determined under this special statute. It should be noted this statute likewise makes no distinction between competents and incompetents.
Statutes in pari materia must be read and construed together in order to ascertain the legislative intent. G. S. 1949, 59-2252 and the nonclaim statute, G. S. 1949, 59-2239, were enacted by the same legislature and at the same time. We think it was the legislative intent that a person desiring to open a judgment of the probate court pertaining to title to real estate of a decedent should first exhaust the special remedies of the probate code provided for that express purpose.
Considering and construing the various pertinent provisions of the probate code we think they disclose a deliberate legislative intent and purpose to provide for an early settlement of titles to real property in order that persons purchasing or dealing therewith might do so with assurance respecting the validity of such titles. If appellant’s contentions were adopted the result would be that title to lands involved in administration proceedings and assigned as directed by the probate code could be challenged successfully for twenty, thirty, sixty years or longer. An incompetent’s disability might continue during his entire lifetime. We do not believe the legislature intended such a result.
Appellant relies on various decisions of this court holding that a void judgment may be set aside at any time. We previously indicated the judgment was not void. We also observe none of the cases he relies upon presents the question whether the present non-claim statute of the probate code was applicable to incompetents. Appellant also relies on cases holding that failure to give statutory notice to persons concerning court proceedings renders a judgment void as to them. We have previously indicated the record before us does not disclose failure to give any publication notice required by law in connection with the administration of decedent’s estate and that no personal service on William E. Hoppas, a stranger to the proceedings, was required. Appellant cites cases in which it has been held a guardian ad litem should have been appointed for the protection of the interests of an incompetent. From facts previously stated it is clear there was nothing in the instant administration proceedings which suggested the need for or required the appointment of a guardian ad litem.
The judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This case involves an appeal by the Kansas Commission on Civil Rights (KCCR) and Kurt W. Neunzig (a tenured teacher employed by Seaman U.S.D. No. 345) from an order of the Shawnee County District Court dismissing Neunzig’s complaint before the KCCR of employment discrimination by U.S.D. No. 345. The district court determined the KCCR was without jurisdiction to hear Neunzig’s complaint because Neunzig had already received a due process hearing on the matter pursuant to K.S.A, 72-5438.
The issues raised on appeal are jurisdictional and the merits of Neunzig’s complaint of discrimination are not before this court. The issues are whether the district court erred by dismissing the case (1) based upon findings that the KCCR had no jurisdiction over Neunzig’s complaint because of the operation of principles of election of remedies, collateral estoppel, and res judicata; and (2) based upon findings that the interests of “judicial economy” favored barring Neunzig’s claim under the Kansas Act Against Discrimination (KAAD).
The issues involve the interplay of a teacher’s rights under the Teacher Tenure Act, K.S.A. 72-5436 et seq., and the KAAD, K.S.A. 44-1001 et seq., and, therefore, the procedural background and facts giving rise to Neunzig’s complaint are material to our decision.
On or about October 15, 1979, Neunzig was notified of the proposed termination of his contract as a teacher with Seaman U.S.D. No. 345. The proposed termination was premised upon his unexcused absence of four school days, which occurred while he attended a religious convocation of the World Wide Church of God, of which he was a member. Neunzig received a hearing before the Board of Education of U.S.D. No. 345 on October 22, 1979. On October 30, 1979, Neunzig was notified by the Board of his termination. Neunzig then requested a due process hearing before a hearing committee pursuant to K.S.A. 72-5438. At that hearing held February 7, 1980, Neunzig argued the termination of his contract was based upon the exercise of his constitutional right of free exercise of religion. On March 14, 1980, the hearing committee rendered its recommendation to the Board that Neunzig’s termination be made final, finding Neunzig had breached his employment contract. U.S.D. No. 345 approved the recommendation and terminated Neunzig’s employment.
Neunzig did not appeal that decision to the district court as provided by K.S.A. 72-5443. Rather, on April 3, 1980, Neunzig filed a complaint with the KCCR under the KAAD claiming the termination of his contract was discriminatory and a violation of his constitutional right of free exercise of religion. A public hearing on Neunzig’s complaint was held on November 16,1983. The decision of the KCCR hearing examiner ordering Neunzig’s reinstatement and compensation for loss of income was rendered March 7, 1984, and approved by the KCCR chairperson on May 3, 1984.
U.S.D. No. 345 appealed that decision to the district court pursuant to K.S.A. 44-1011, claiming the KCCR lacked jurisdiction to hear Neunzig’s complaint. The district court agreed, ruling Neunzig could have initially filed his complaint with the KCCR rather than requesting a due process hearing. The district court ruled that after Neunzig had elected the due process hearing and raised all the relevant issues at that hearing, he could not abandon that procedure after a final order was issued and should have appealed to the district court pursuant to K.S.A. 72-5443.
Neunzig (complainant-appellant) and the KCCR (appellant) appeal from the district court’s ruling dismissing the complaint filed under the KAAD against Seaman U.S.D. No. 345 (respondent-appellee). As previously stated, the issues are jurisdictional and do not involve the merits of Neunzig’s complaint.
The due process procedure provided for terminating teacher contracts is found within the Teacher Tenure Act, K.S.A. 72-5436 et seq. K.S.A. 72-5438 provides that whenever a teacher is given written notice of the Board’s intention not to renew the teacher’s contract, or whenever a teacher is terminated before the end of his or her contract term, the teacher shall be provided a statement of reasons for the Board’s actions and that the teacher may request a full due process hearing to be held before a three-member hearing committee. The purpose of the due process hearing is to develop the grounds that have induced the Board to discontinue the teacher’s services, and to determine whether the evidence presented establishes good cause within the spirit and purpose of the teacher tenure statutes. Gillett v. U.S.D. No. 276, 227 Kan. 71, 77-78, 605 P.2d 105 (1980).
At the due process hearing, the teacher and Board may be represented by counsel, may cross-examine each other, may present witnesses, and may testify on their own behalf. K.S.A. 72-5439. The hearing committee is empowered, when authorized by a majority of the committee, to administer oaths; issue subpoenas; authorize the taking of depositions; receive evidence; limit lines of questioning and testimony; call and examine witnesses; introduce documentary and other evidence into the record; regulate the course of the hearing; dispose of procedural requests, motions, and similar matters; and take any other action necessary to make the hearing accord with procedural due process. K.S.A. 72-5442. The hearing is not controlled by the rules of evidence. The burden of proof initially rests with the Board except when the allegation is that the teacher’s contract was terminated or nonrenewed by reason of the teacher having exercised a constitutional right. K.S.A. 72-5446 sets forth the procedure when the abridgment of a constitutional right is alleged. The teacher comes forward with the evidence; if the hearing committee finds it is substantial the Board is required to submit its reasons, and those reasons must be supported by substantial evidence.
After the hearing the hearing committee makes a recommendation to the Board. If the hearing committee members are unanimous in their opinion, the Board shall adopt that opinion as its decision and such decision is final, subject to appeal to the district court as provided by K.S.A. 1985 Supp. 60-2101. K.S.A. 72-5443(b). If the hearing members are not unanimous in their opinion, the Board shall consider the opinion, hear oral arguments or receive written briefs from the parties, and decide whether the teacher’s contract should be renewed or terminated. The Board’s decision shall be final, subject to appeal to the district court as provided by K.S.A. 1985 Supp. 60-2101. K.S.A. 72-5443(c).
The scope of review applied by the district court on appeal is not de novo; the district court may not substitute its judgment for that of the administrative agency or tribunal. It is restricted to deciding whether, as a matter of law, the agency or tribunal acted fraudulently, arbitrarily, or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s actions were within the scope of its authority. Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 754-55, 648 P.2d 225 (1982); Brinson v. School District, 223 Kan. 465, 469, 576 P.2d 602 (1978).
Turning to the provisions under the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq., we note that the Kansas Civil Rights Commission created therein is empowered to receive and investigate complaints alleging discrimination in employment because of religion, among other types of discrimination. K.S.A. 1985 Supp. 44-1005. If, after investigation, the KCCR determines no probable cause exists to support the complaint, the case is closed. If, however, the KCCR determines probable cause does exist, resolution of the matter is attempted through conference and conciliation. If those efforts fail, a public hearing may be held. K.S.A. 1985 Supp. 44-1005 and K.A.R. 21-45-1 through 25 provide for due process at the public hearing: notice, representation, introduction of evidence, cross-examination, argument, and briefs. Upon the service of the KCCR’s orders, the dissatisfied party must file for a rehearing. If that rehearing application is denied, appeal may be taken to the district court as provided by K.S.A. 44-1011. The district court on appeal reviews the proceeding de nyvo to determine anew whether the respondent was guilty of discriminating against the complainant. K.S.A. 44-1011.
Is Neunzig precluded from filing a complaint with the KCCR alleging discrimination after he has already litigated the matter before a hearing committee under his protected rights as a tenured teacher?
The appellants refer this court to many cases involving the application of res judicata and similar principles when the procedural posture is between a state administrative agency and the courts, whether federal or state. But that is not the procedural posture of this case. Here, Neunzig first litigated his claim of religious discrimination before the hearing committee established by K.S.A. 72-5442. Unsatisfied with the results, Neunzig then filed a complaint with a second administrative body, the KCCR, alleging the same matter previously heard by the hearing committee — that his termination of employment was based upon the exercise of his constitutional right to free exercise of religion. In essence, Neunzig has moved laterally — from one administrative body to another without exhausting his remedy under the Teacher Tenure Act in the first proceeding by appealing to the district court.
Does the doctrine of res judicata prevent such a lateral move? The appellants cite Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959), as supporting their contention that Kansas courts do not apply res judicata to administrative decisions. However, in Warburton res judicata is described as “intrinsically a judicial doctrine not to be applied unwittingly to legislative or executive activities which administrative bodies are sometimes empowered to exercise in addition to the judicial one.” 185 Kan. at 476. Thus, the court did not preclude application of res judicata to administrative agency decisions when the agency is acting in a judicial capacity. Accord United States v. Utah Constr. Co., 384 U.S. 394, 421-22, 16 L. Ed. 2d 642, 86 S. Ct. 1545 (1966). Furthermore, there is authority that the principles of res judicata should preclude the lateral move made by Neunzig:
“When an agency conducts a trial-type hearing, makes findings, and applies the law, the reasons for treating its decision as res judicata are the same as the reasons for applying res judicata to a decision of a court that has used the same procedure. But the formality may be diminished in any degree, and when it is sufficiently diminished, the administrative decision may not be res judicata. The starting point in drawing the line is the observation that res judicata applies when what the agency does resembles what a trial court does. Such a resemblance or lack of it applies to determinations of law as well as to determinations of fact.
“An especially good statement of the basic principle and of the reason for it was that of the original Restatement of Judgments, § 1 (1942): ‘Where reasonable opportunity has been afforded to the parties to litigate a claim before a court which has jurisdiction over the parties and the cause of action, and the court has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and any issue actually litigated in the action shall not be litigated again by them.’ The words ‘court’ and ‘litigate’ exclude administrative determinations; perhaps such limiting words should not have been used, because the purpose of common law res judicata applies equally to an administrative determination that resembles a judicial decision with respect to the procedure each party has opportunity to use. Res judicata should cut off a second administrative proceeding when the first proceeding has provided opportunity for something like the procedural protection that a court provides; but should res judicata apply only then?
“The second Restatement of Judgments (1982), unlike the first, deals with ‘Adjudicative Determination by Administrative Tribunal.’ Section 83 provides in part:
‘An adjudicative determination by an administrative tribunal is conclusive under the rules of res judicata only insofar as the proceeding resulting in the determination entailed the essential elements of adjudication, including: . . . (b) The right on behalf of a party to present evidence and legal argument in support of the party’s contentions and fair opportunity to rebut evidence and argument by opposing parties. . . .’
“The main idea of the quoted portion of § 83 — that res judicata should apply to an adjudicative determination by an administrative tribunal when parties have opportunity to use procedure having some resemblance to court procedure — is surely sound. But in two important respects, § 83 and Comment b on § 83 may be of questionable soundness: (1) The provision that res judicata applies ‘only’ when ‘fair opportunity to rebut evidence and argument by opposing parties’ may wrongly assume that ‘opposing parties’ are necessary for adjudication. (2) The Restatement in Comment b may be mistaken in asserting: ‘According finality to administrative adjudication recognizes the similarity between the adjudicative procedure of modern administrative agencies and modern judicial procedure. That similarity did not always exist. ... In the performance of adjudicative functions, however, administrative agencies are generally required by law to employ procedures substantially similar to those used in courts.’ ” 4 Davis, Administrative Law Treatise § 21:3 (2d ed. 1983).
Here, in the proceedings before the hearing committee pursuant to K.S.A. 75-5442, Neunzig asserted he had the right to be absent during October 1979 as a constitutionally protected civil right; he argued that to deny him that right and to terminate his contract was to deny him the constitutional right of freedom of religion. As previously set forth, the hearing committee possesses many of the functions associated with court proceedings. K.S.A. 72-5439, 72-5442. The fact the rules of evidence do not apply at the due process hearing does not lessen the quasi-judicial character of the hearing committee. By requesting the due process hearing, Neunzig was afforded the type of procedural protection a court provides. The hearing committee’s recommendation to the Board to terminate Neunzig was final and was adopted by the Board.
Having determined that res judicata precludes a second administrative proceeding when the first proceeding provided the procedural protections similar to court proceedings, we must determine whether the requirements of res judicata or collateral estoppel are satisfied. Res judicata (claim preclusion) prevents the relitigation of claims previously litigated and contains four elements: (1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits. Collateral estoppel (issue preclusion) prevents the relitigation of issues previously litigated and, if res judicata is found to apply, there is no need to consider the application of collateral estoppel. See generally 46 Am. Jur. 2d, Judgments §§ 394-620. See also In re Estate of Reed, 236 Kan. 514, 519-21, 693 P.2d 1156 (1985); Wirt v. Esrey, 233 Kan. 300, 308, 662 P.2d 1238 (1983).
Here, all the elements of res judicata are satisfied. First, Neunzig raised the same claim before the due process hearing committee that he raised before the KCCR public hearing examiner — that the right to be absent from school to attend a religious convocation was a constitutionally protected right and that to deny him that right and to terminate him was to deny him the constitutional right of freedom of religion. Second, the parties before each administrative hearing were the same — teacher v. Board. Third, had Neunzig not raised the claim of an abridgment of his constitutional rights at the due process hearing, he could have because K.S.A. 72-5446 specifically so provides. Fourth, the hearing committee’s recommendation to the Board to terminate Neunzig was a complete determination on the merits and, when the Board made the decision to terminate, that decision was final pursuant to K.S.A. 72-5443.
The Colorado court was faced with a similar situation in Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974). There, after a teacher, a member of World Wide Church of God, attended a religious convocation without permission of the school board, he received written notice of the Board’s intention to dismiss him. Umberfield, the teacher, received a full adversary hearing under the Colorado Teacher Tenure Act. The panel’s recommendation to dismiss Umberfield was not appealed to the district court as provided by Colorado law. Rather, Umberfield filed a complaint with the Colorado Civil Rights Commission. The hearing examiner ruled Umberfield had not been dismissed because of his religious beliefs. That ruling was reversed by the Commission. The school district sought judicial review and the district court found that because Umberfield failed to seek judicial review of the Teacher Tenure Panel’s decision, he could not attack his dismissal in another forum. The Colorado Court of Appeals disagreed on that point. The Colorado Supreme Court, however, agreed with the district court’s dispo sition of the case. The court found Umberfield was able to presentall evidence before the Teacher Tenure Panel while the sole function of the Civil Rights Commission was to make a finding of fact regarding discriminatory practices in employment. The court stated:
“Because Umberfield had a full adversary hearing before the Teacher Tenure Panel which had the power to determine all his claims of religious discrimination, we hold that the doctrine of res judicata operates as a bar,,to the relitigation of issues which Umberfield raised or could have raised in the hearing before that panel and on judicial review. [Citations omitted.] To hold otherwise could result in an anomalous situation where the same reviewing court would be compelled to affirm opposite results of the two administrative bodies. Assuming credible and conflicting evidence, a school board might dismiss a tenured teacher and a reviewing district court could uphold the dismissal under C.R.S. 1963, 3-16-5. The same district court, in reviewing a subsequently filed proceeding before the Civil Rights Commission, would be bound to uphold a contrary result if supported by substantial evidence. C.R.S. 1963, 80-21-8(6). To avoid this judicial inconsistency, the doctrine of res judicata must be applied to the subsequently filed proceeding before the Civil Rights Commission.” 185 Colo, at 173-74.
There are statutory and other distinctions between Kansas and Colorado law, but we think these differences are immaterial to the basic issue presented.
We hold Neunzig’s failure to seek judicial review of the school board’s decision to terminate his employment, after it approved the recommendation of the hearing committee following the due process hearing under the Teacher Tenure Act, precludes his attack upon the dismissal of his discrimination complaint under the Kansas Act Against Discrimination. K.S.A. 72-5443 provides that the Board’s decision to terminate a teacher is final, subject to appeal to the district court. The doctrine of res judicata precludes the teacher from instituting a second administrative proceeding before the KCCR on issues which the teacher raised or could have raised before the hearing committee.
Having determined res judicata is applicable to the instant case, this court finds appellant’s second issue based on judicial economy is without merit. The doctrine of res judicata rests upon considerations of economy of judicial time and public policy which favors establishing certainty in judgments. Roach v. Teamsters Local Union No. 688, 595 F.2d 446 (8th Cir. 1979).
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This is an original action in discipline filed by Arno Windscheffel, disciplinary administrator, against John Charles Amorosa, formerly of Mission, Kansas, alleging certain violations of the Code of Professional Responsibility (235 Kan. cxxxvii et seq.). Respondent is now a resident of California.
Although respondent did not personally appear at the hearing before a panel of the Kansas Roard for Discipline of Attorneys, he did file a lengthy document in the nature of a response to the complaint. In October 1984, respondent undertook to represent Paul J. Cinnamon in the filing of a bankruptcy action. Mr. Cinnamon paid respondent $300.00, the fee set forth in the bankruptcy petition. Respondent prepared and filed the petition while in the process of leaving the law practice and relocating in California. In spite of the contemplated move, respondent assured Mr. Cinnamon that he could adequately represent him, make the necessary court appearances and see the bankruptcy action through to its conclusion. Thereafter, respondent failed to appear at, or secure a continuance of, the first meeting of creditors scheduled for December 6, 1984. After repeated efforts, Mr. Cinnamon was able to contact respondent by telephone in California on December 31, 1984. Respondent advised his client at that time that he could no longer represent him and agreed to refund the fee previously paid. The fee was never refunded.
The disciplinary panel found that the respondent had neglected a legal matter for which he had assumed responsibility in violation of DR 6-101(A)(3) (235 Kan. cxlvii) and we concur with that finding. Although the disciplinary panel recommended that respondent be indefinitely suspended from the practice of law, a majority of the members of this Court is of the opinion public censure would be the appropriate discipline.
It is Therefore Ordered that respondent be and he is hereby disciplined by public censure and it is directed that this order be published in the official Kansas Reports.
It is Further Ordered that the costs of this proceeding be assessed to the respondent.
Effective this 13th day of June, 1986. | [
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On the 13th day of May, 1986, following plea negotiations, Philip R. Sturgis of Hays, an attorney admitted to the practice of law in the State of Kansas, entered a plea of guilty in the District Court of Ellis County, Kansas, to one count of criminal solicitation, K.S.A. 1985 Supp. 21-3303, a felony. Thereafter, on the 2nd day of June, 1986, Philip R. Sturgis, pursuant to Supreme Court Rule 217 (235 Kan. cxxxii), surrendered to Arno Windscheffel, disciplinary administrator, his license to practice law in the State of Kansas.
The Court, being fully advised, finds that the surrender of the license to practice law of Philip R. Sturgis should be accepted and that he should be disbarred from the further practice of law in the State of Kansas.
It is Therefore Ordered that Philip R. Sturgis be and he is hereby disbarred from the practice of law in the State of Kansas, his license to practice law is revoked and the Clerk of the Appellate Courts is directed to strike the name of Philip R. Sturgis from the rolls of attorneys in Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to Philip R. Sturgis.
Effective this 23rd day of June, 1986. | [
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The opinion of the court was delivered by
McFarland, J.:
In 1979, Kenneth D. Newell brought an action against defendant Carl N. Brollier and others seeking damages arising from certain real estate transactions occurring in 1977 and early 1978. The only service on Carl N. Brollier was on August 9, 1979, when a copy of the summons and petition was left at his office with his son James C. Brollier. On January 21, 1985, the action as to Carl N. Brollier was dismissed on the grounds of lack of personal service. This dismissal was affirmed in Newell v. Krause, 239 Kan. 550, 722 P.2d 530 (1986).
Subsequent to the dismissal of the original action against Carl Brollier, the plaintiff did, on March 12, 1985, file a new lawsuit against Carl asserting the same causes of action. On May 31, 1985, the district court dismissed the second action on the basis of the running of the statute of limitations. Plaintiff appeals therefrom.
Plaintiff contends K.S.A. 60-203(b) authorizes the filing of his new action against Carl Brollier and extends the statute of limitations for such new action. We do not agree.
K.S.A. 60-203, in its entirety, provides:
“Commencement of action, (a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).
“(b) If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff. •
“(c) The filing of an entry of appearance shall have the same effect as service.”
K.S.A. 60-203 is concerned exclusively with when a civil action is commenced. The exact date an action is “commenced” is often crucial in statute of limitations issues. Under section (a), a plaintiff may file an action on the last day of a two-year statute of limitations and still be within time as long as service of process is obtained within 90 days (or 120 days if extended by the court). If service is made later than the specified time period, the action is commenced on the date service is obtained.
Section (b) of the statute provides that if service purports to have been made within the period provided in (a) but is subsequently “adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service” the action shall be deemed commenced if valid service is obtained “within 90 days after that adjudication” (or 120 days if extended by the court).
K.S.A. 60-230, in essence, operates to relate service of process back to the date of the filing of the petition in determining when an action is commenced. Nowhere does K.S.A. 60-203 refer to the filing of a new action after a previous action has been dismissed as does K.S.A. 60-518, which states:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, oí, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.”
Note, K.S.A. 60-518 is inapplicable herein as the original action was not “commenced within due time” by virtue of the lack of service on Carl Brollier.
K.S.A. 60-203(b) allows a plaintiff whose service on a defendant is adjudicated invalid to obtain proper service and still have his action deemed commenced as of the date of the filing of the petition if he obtains service within 90 days of the adjudication of invalidity (or 120 days if extended by the court). Plaintiff herein did not bring himself within K.S.A. 60-203(b) by seeking proper service in the original action — instead, he filed a new case. That new case (the one before us) was commenced on the date of its filing (March 12, 1985), as service was obtained within 90 days thereafter — well beyond the statute of limitations on any of the causes of action based on certain 1977 and 1978 real estate transactions.
We conclude the district court did not err in dismissing the case herein predicated upon the running of the statute of limitations.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment of the trial court in favor of plaintiff and against the defendant for the unpaid balance due on a promissory note which had been secured by a chattel mortgage on a new automobile that defendant had sold to a purchaser.
The defendant, Dwaine R. Perkins, doing business as the Perkins Pontiac Company, was a dealer in new Pontiac cars. Plaintiff, a Nebraska corporation, was a finance company obligated by contract to purchase notes and mortgages executed by purchasers of new cars from defendant. The notes and mortgages represented the balance due upon the purchase price of the new cars after the down payment had been made. Defendant endorsed the notes and mortgages to plaintiff without recourse.
The pertinent part of the authorized dealer’s reserve agreement controlling the dealings between plaintiff and defendant provided:
“Exceptions. Dealer is not protected against loss resulting from Collision or in event of Conversion or Confiscation under the following circumstances where:
“The Dealer has made these forms of protection known to the purchaser; The purchaser does not make an actual down payment equal to or greater than the minimum required in the regular published terms of the Corporation; Such down payment is not made in actual cash . . . Loss results from failure of Dealer, when required hy State-laws, to apply for Certificate of Title showing the Corporation lien. . . .
“In any instance where the Dealer is not protected by reason of any circumstance in the foregoing paragraph the Corporation is authorized to delete the phrase 'without recourse’ from the particular note affected and to substitute therefor a waiver of demand, notice of non-payment, protest and notice of protest and in the event of non-payment of the note or any installment thereof the Dealer shall upon request of the Corporation pay the note.” (Our emphasis.)
On April 30, 1954, defendant sold a new Pontiac to Walter Kleweno and received Kleweno’s personal check in the sum of $1,000 as the down payment. The balance was covered by a note in the amount of $2,456.40 which was secured by a mortgage on the new Pontiac. Both the note and mortgage dated April 30, 1954, were payable to defendant. When Kleweno’s check was presented for payment, it developed the check was no good whereupon defendant refused to complete the sale until May 4, 1954, when Kleweno paid $600.00 to pick up the bad check.
On May 5, 1954, defendant and Kleweno went to the office of the treasurer of Rush county who testified as follows during the trial:
“Q. ' If you remember, when these papers came to your office, was there any conversation between you and Mr. Perkins, concerning any lien on this vehicle. A. As I recall, I asked him if it should be shown on the bill of sale, and, he said there was a little bit of money owed, but, not to record it, and since it is not listed on the bill of sale there is no reason—
“Mr. Boyle: Object until it is shown who ‘He’ was.
“A. I beg your pardon, Mr. Perkins. Mr. Kleweno and Mr. Perkins were conversing, and, we are not required to put in on the application of title unless it is shown on the bill of sale.
“Q. There was some discussion between you and Mr. Perkins and Mr. Kleweno, as to whether or not he was required to show a lien on this? A. I asked him if there was.
“Q. Who, was? A. I asked Mr. Perkins if there was a lien and he said there was a small amount of money, but, they wanted a clear title. I proceeded to fill out their papers and what their conversation was, together, I couldn’t say for sure.”
The record shows by the testimony of plaintiff’s branch manager that on May 4, 1954, the note and mortgage were presented at that office by defendant and plaintiff’s check in the amount of $1,900.00 was executed to defendant. From the record this is the only evidence bearing on the date the actual assignment took place, pursuant to the authorized dealer’s reserve agreement.
Under G. S. 1949, 8-127, every owner of a motor vehicle before operation thereof on any Kansas highway, shall apply for and obtain the registration of the vehicle as provided in G. S. 1949, 8-135 (c) which, in part, reads:
. . no vehicle required to be registered hereunder shall be registered on number plates issued therefor . . . unless the applicant for registration thereof shall at tire same time present satisfactory evidence of ownership and make application for an original certificate of title for such vehicle. (1) Said application for certificate of title shall be made by the owner . . . and shall contain ... in the case of a new vehicle, the date first sold by the manufacturer or dealer to the customer, together with a statement of the applicant’s source of title and all liens or encumbrances thereon . . . (3) Dealers shall execute, upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon. . . .” (Our emphasis.)
On May 20, 1954, Kleweno surrendered his Kansas certificate of title free and clear of any lien and obtained a Colorado license on the automobile in question.
The testimony of plaintiff’s branch manager further showed that he had made demand on Kleweno for the balance of the note and after default by Kleweno, defendant was notified of plaintiff’s election to proceed against defendant under the exception provision of the authorized dealer’s reserve agreement.
After judgment was granted to plaintiff for the unpaid balance of the note, interest, and costs, the defendant filed a motion for new trial which was overruled. This appeal followed. Defendant claimed six specifications of error but stated that in the appeal only two questions need be answered under the terms of the authorized dealer’s reserve agreement. They are:
1. Was the dealer required under state laws to apply for a certificate of title?
2. Is a new car dealer required by the laws of this state to endorse upon the bill of sale executed by him on the sale of a new car, a purchase price note and mortgage, executed by the purchaser following such sale?
The terms of the contract between defendant and plaintiff were unambiguous and were conclusive as to their rights and liabilities. (7 Blashfield on Automobiles, § 4615, p. 520.) Laws in effect at the time of a transaction are a part of a contract (2 Hatcher’s Kansas Digest, rev. ed., Contracts, § 48, p. 27) and, as can be seen in the exception clause in our case, state laws were specifically referred to. Thus defendant was required not only to execute a bill of sale at the time he delivered the car to Kleweno, but he was also required to state the lien thereon. This served as a protection to defendant and protected the' plaintiff as well.
It is a general rule of law that an assignee acquires no greater rights from the assignment of a note and mortgage than those possessed by the assignor (7 Blashfield on Automobiles, § 4613, p. 506) and this rule is followed in Kansas. (Commercial Credit Corporation v. Kemp, 176 Kan. 350, 270 P. 2d 209.) When defendant gave Kleweno a clear bill of sale, it necessarily followed that a clear certificate of title would be forthcoming and this afforded Kleweno the opportunity thereafter to do anything that he pleased with the car. A subsequent sale to an innocent purchaser cut off any rights of repossession of either plaintiff or defendant and gave clear title to the innocent purchaser. (Sorensen v. Pagenkopf, 151 Kan. 913, 101 P. 2d 928; General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181, 18 A. L. R. 2d 808, and see anno. pp. 813, 816, for a good discussion on the subject; Ruth v. Dumler, 170 Kan. 698, 228 P. 2d 694; Universal Finance Corp. v. Schmid, 177 Kan. 414, 280 P. 2d 577.)
There is no reason or justification shown in the record for defendant executing a clear bill of sale and actively assisting Kleweno in obtaining a clear certificate of title. Defendant could have so easily protected himself by showing the lien on the note and mortgage. His theory that Kleweno did not own the car on April 30, 1954, avails him nothing. (Bankers Investment Co. v. Meeker, 166 Kan. 209, 201 P. 2d 117.) When defendant failed to show the lien on the bill of sale, as already stated, he brought himself within the exception clause of his contract with plaintiff and he cannot now be heard to complain of plaintiff’s acting thereunder. We certainly are not impressed with his theory that the words “when required by statute” apply only when a dealer is required to apply for a certificate of title. That is not the law and it was not the clear meaning of the contract. We will labor the point no further.
Defendant complains that the trial court considered erroneous statements in arriving at its decision. On appellate review this court is concerned only with the correctness of a decision of a trial court and not with the precise correctness of the reasoning of that court in so deciding. One of our many cases so holding is Rauh v. Dumler, supra, where it was said:
“On review this court, of course, is never concerned with the precise cor rectness o£ every statement contained in a memorandum opinion such as this or, for that matter, even with the reasoning disclosed therein. Our concern is with the correctness of the decision.” (p. 702.)
Other contentions of defendant raised herein are not material and, therefore, do not merit discussion in this particular case. Nothing approaching reversible error is shown in the decision of the trial court and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order overruling a demurrer to a second amended petition in an action to have a warranty deed declared a mortgage and recover other incidental relief.
Plaintiff commenced the action against Vance Cooper only by filing a petition in the district court of Sedgwick County on June 3, 1953. Due to the incomplete record presented by the parties, which is wholly void of any information with respect to that situation, we have no way of determining what happened in this case between June 3, 1953, and May 30, 1956. However, from matters to be presently mentioned it may be inferred, and we therefore assume, that during such interim an amended petition substantially the same as the original, was filed by the plaintiff and the defendant Vance Cooper filed an answer joining issues on all questions relating to whether the absolute deed in controversy was executed as security for a debt and therefore to be regarded as a mortgage.
In any event, the inadequate record before us discloses that the case was called for trial and partially tried on May 30, 1956; that on the morning of the following day the plaintiff orally moved to make Viola Mendenhall Pinkston an additional party defendant with leave to amend her petition so as to include fraud and misrepresentation on the part of both Vance and Viola; and that after consideration of such motion the court found that Viola was a necessary party to the determination of the rights of all parties, and ordered that plaintiff amend her petition by making Viola a party defendant and by making appropriate allegations to join issues with such defendant, including permission to incorporate in such amended petition allegations of fraud and misrepresentation.
The record further discloses that after action as above related, and pursuant to such order, plaintiff filed her second amended petition. That pleading reads:
“1. That when said cause was originally filed, she was a resident of Wichita, Sedgwick County, Kansas; that presently she resides in the State of Wyoming; that the said defendants, Vance Cooper and Viola Mendenhall Pinkston, at the time said action was originally filed, resided in Wichita, Sedgwick County, Kansas, but that since said time both of said defendants have changed their place of residence to East Buffalo, Neosho County, Kansas.
“2. That on the 17th day of December, 1952, and prior thereto, the plaintiff was the owner and in possession of the following described premises:
“Lots 9 and 11, Mascot Avenue, Mosteller’s Addition to Wichita, Sedgwick County, Kansas;
that said property had a fair market valuation of approximately $6850.00.
“3. That upon December 17th and the few months prior thereto, the plaintiff was in need of cash, and consequently borrowed from the defendant the approximate sum of $670.00 for a period of not over two years.
“4. That to secure the payment of said loan, the plaintiff executed and delivered to the defendant a warranty deed dated December 17, 1952, which was recorded on December 19, 1952, in Book 871, Page 491, of the records of the Register of Deeds Office. That even though said deed was regular in form, it was intended by both plaintiff and defendant to be a mortgage only, and to stand as security for the repayment of said loan, and to serve for no other purpose. That immediately upon the filing of said deed, the defendants entered into possession of said premises on said date, and have been in continuous possession since that time, and have recently advertised the sale of said premises by a signboard placed in the yard thereof. The defendants further have refused to discuss ownership of the property with the plaintiff, and from all outward appearances, and from statements they have made, have taken the position that they are the absolute owners.
“5. That the plaintiff is now in a position to repay the defendant, Vance Cooper, tire money she borrowed from him less any sum which he may owe her for rent and occupancy of said premises from December 19, 1952, to date. Even though the plaintiff has undertaken to discuss repayment of the loan by and through her mother and her aunt, the defendants refused to talk with them, and insisted upon retaining possession of said premises, and insisted upon maintaining a ‘For Sale’ sign in the front yard.
“6. That the plaintiff is now ready to pay said loan and hereby offers to pay the money to the office of the Clerk of the Court just as soon as the amount owing can be established.
“7. Plaintiff further alleges that at all times that the defendant, Vance Cooper, occupied the premises herein described, the defendant, Viola Mendenhall Pinkston, lived with him at said premises, and that she still lives with him and that at all times material hereto has occupied the same dwelling as the defendant, Vance Cooper, and had full knowledge of the fact that said deed executed by this plaintiff to the defendant, Vance Cooper, and dated December 17, 1952, was intended by both the plaintiff Barbara Bohannon, and the defendant, Vance Cooper, to be a mortgage and act as security only for the loan hereinbefore referred to.
“8. Plaintiff further alleges that subsequent to December 17, 1952, the defendant, Vance Cooper, and the defendant, Viola Mendenhall Pinkston, with intent to defraud this plaintiff of her property, and more particularly, Lots 9 and 11, Mascot Avenue, Mosteller’s Addition to Wichita, Sedgwick County, Kansas, did cause a Warranty Deed to be executed and delivered wherein the defendant, Vance Cooper, was the grantor and the defendant, Viola Mendenhall Pinkston, was the grantee, said deed being duly recorded in the Office of the Register of Deeds of Sedgwick County, Kansas; that said deed was caused to be executed and delivered with the intent on the part of the said defendants, and each of them, to fraudulently obtain fee title to said property from said plaintiff, when the defendants, and each of them, well knew that said deed dated December 17, 1952, from the plaintiff to the defendant, Vance Cooper, was for security purposes only, constituting security for the loan herein referred to; that a photostatic copy of said deed is hereto attached, marked Exhibit ‘A,’ and made a part hereof by reference.
“9. Plaintiff further alleges that the fraudulent practice and acts on the part of the defendants, and each of them, as herein stated were not discovered or known to the plaintiff until May 24, 1956, at which time plaintiff first discovered the same.
“Whebefobe, plaintiff prays judgment that the deed dated December 17, 1952, from this plaintiff to Vance Cooper be determined as a mortgage; that an account be made of the amount due defendant, Vance Cooper, after deducting fair and reasonable rental for said premises; that upon payment by plaintiff of the amount due, defendant, Vance Cooper, be required to deed said property to this plaintiff and to return possession of premises to plaintiff; that the deed from defendant, Vance Cooper, to the defendant, Viola Mendenhall Pinkston, be declared void, cancelled and set aside, and that this plaintiff be determined tlie absolute owner in fee simple of the title to said premises, and to said real property, and for such other and further relief as to the court may seem equitable and proper.”
For informative purposes it is of interest to note that the deed, identified in the foregoing pleading as Exhibit “A,” was filed for record on June 2, 1953, in the office of the Register of Deeds of Sedgwick County and that, except for changes in language required to include two defendants instead of one, the allegations of paragraphs 2, 3, 4, 5 and 6 of such pleading are substantially the same in form and import as those made by plaintiff in like numbered paragraphs of her original petition.
Following the filing of the second amended petition Viola filed a demurrer to that pleading which was presented and argued on the premise it failed to state a cause of action because it disclosed on its face the action was barred by the statute of limitations. (G. S. 1949, 60-306, Third.) Upon the overruling of such demurrer she perfected the instant appeal.
Cutting through form to substance, and giving it the benefit of inferences to which it is entitled on demurrer, the petition charges that the deed executed by appellee to Cooper was at all times known and intended by the parties, including appellant, to be an equitable mortgage; that after its execution, and notwithstanding their knowledge of his limited interest in the property, Cooper and appellant with intent to defraud appellee caused a warranty deed to be executed by Cooper to appellant at a time when all parties (appellee, appellant and Cooper) knew the deed from appellee to Cooper constituted an equitable mortgage only; and that none of the fraudulent acts and practices of the appellant and Cooper in that regard, who were living together at all times material to the cause, was discovered or known by appellee until May 24, 1956. It is to be noted such discovery is alleged to have occurred long after the action to set aside the deed had been commenced and within just a few days from the date on which appellant was made a party to the action and appellee’s amended petition, as heretofore quoted, was filed.
The gist of all contentions advanced by appellant in support of her position the order overruling the demurrer was erroneous is based on the proposition that the recording of the deed from appellee to Cooper on December 19, 1952, and the recording of the deed from Cooper to appellant on June 2, 1953, gave appellee constructive notice of Cooper’s repudiation of the alleged equitable mortgage and the other fraudulent acts relied on by appellee to sustain her cause of action, hence it was barred by 60-306, Third, .notwithstanding the provisions of that section of the statute provide that “the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The trouble with all contentions advanced by appellant on this point comes from her failure to recognize this, in essence, is a suit to have a deed declared an equitable mortgage. In actions of such character this court is committed to the rule constructive discovery does not apply and the statute of limitations does not begin to run until actual notice of the fraud. For what is perhaps our leading case on the point see Miller v. Cloney, 123 Kan. 538, 256 Pac. 159, where it is held:
“The execution of a deed, absolute in form, intended by the parties as a security for an indebtedness will be treated as a mortgage, and their contemporaneous agreement evidencing such intention may be shown by parol proof.
“Where the grantee, so-called, recognizes the intention and agreement for a time, but later renounces his trust and claims the instrument was an outright conveyance, which vested the absolute title in him, an action may be brought by the grantor to declare the instrument to be a mortgage and for other relief within two years after the actual discovery of the fraudulent renunciation of the trust by the grantee.
“The rule of constructive discovery does not apply where the grantee in the instrument mentioned, executed a mortgage on the property which is placed on record, and the statute of limitations does not begin to run until the actual discovery of the fraud by the grantor.” (Syl. ¶¶ 1, 2 and 3.)
and at page 541 of the opinion said:
“As to the contention that this is an action based on fraud which must be brought within two years after the discovery of the fraud, and that plaintiff must be held to have discovered the fraud when Cloney placed a mortgage on the land, which was recorded in 1922, while the legal title of the land was in Cloney, it was held by him only in trust until the obligations against it had been paid. Until he renounced the trust and claimed ownership as against plaintiff, the statute did not begin to run. (Hunter v. Coffman, 74 Kan. 308, 86 Pac. 451; Clark v. Shoesmith, 91 Kan. 797, 139 Pac. 426.) While the defendant Cloney placed a mortgage on the property which was recorded in 1922, the plaintiff had no actual knowledge of it nor any notice that he claimed adverse ownership until 1923. The rule of constructive discovery does not apply in cases of this kind. The fraud was not in the execution of the instrument, but it was in the subsequent repudiation of the agreement and trusteeship of Cloney. Until the plaintiff had actual notice of the fraud, the statute did not begin to run. It was not set in motion by the so-called constructive discovery. (Duffitt v. Tuhan, 28 Kan. 292; Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615; St. Clair v. Craig, 77 Kan. 394, 94 Pac. 790, 101 Pac. 3.) The action was brought within two years from the time the fraud was actually discovered by the plaintiff.”
See, also, Leeka v. Yount, 145 Kan. 155, 64 P. 2d 24, where the rules announced in the three paragraphs of the syllabus of the foregoing decision are quoted at length and adhered to.
Based on the foregoing decisions we have no hesitancy in concluding that under the facts, conditions and circumstances set forth at length in the second amended petition the appellant’s position that pleading fails to state a cause of action because it was barred by the statute of limitations (60-306, Third) lacks merit and cannot be upheld.
Finally it should be stated that in order to avoid saying anything which might be prejudicial- to the parties in a trial we have purposely refrained in this opinion from mentioning any matters respecting the existence of defensive facts and circumstances which might be involved in this case after joinder of issues on the merits of the cause. Whether appellee can sustain the burden of proving the allegations of her second amended petition or appellant establish defenses with respect thereto, which can defeat recovery in the action, are not matters with which we are presently concerned under the limited appellate issue involved. All we are now warranted in holding is that under the facts, conditions and circumstances set forth and described in the challenged petition the trial court’s action in overruling the demurrer to that pleading was proper and must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by Paul R. Nagle, executor of the estate of N. Davison, deceased, against three sons of the deceased, who are residuary devisees under the.will, for a declaratory judgment as to the ownership of one-third of the wheat crop growing upon certain lands in Stafford county devised under .the residuary clause of the will. The residuary devisees answered admitting there was an actual controversy as to the usual landlord’s share of the wheat crop, but denying any right of the executor thereto, claiming to own the entire crop themselves as devisees of the land upon which it was growing. The court made numerous findings of fact and rendered judgment for the defendants, from which the plaintiff, the executor, appeals.
N. Davison, owner of the land involved, died August 24, 1926, leaving a will directing the payment of his debts, making a specific legacy to his wife and another to his daughter, then designating these three sons as residuary devisees of all the rest and remainder of his estate, real, personal and mixed. The will was probated on August 30, 1926. Inventory and appraisement were made of all the property at once, and it'was found that the land was heavily mortgaged, so that the mortgages, other debts and specific legacies exceeded the appraised value of all the property. On November 29, 1926, the probate court granted the plaintiff an order to sell the real estate to pay the debts and legacies. In the meantime, after the death of the father, the sons sowed about 600 acres of the land devised to them to wheat and the executor offered with the land the usual landlord’s share, or one-third of the growing wheat. There was no lease made by the executor, but he showed and the court found that one-third of the crop was the usual share of the landlord in that vicinity. The defendants do not question the right of the executor to sell the land and all of it if necessary to pay the debts and legacies, but do claim they are and have been the owners of the land since the death of their father and have the right as such owners to the rents and profits thereof until it is sold by the executor. This was the sole question submitted to the trial court, and both parties wanted a declaratory judgment as to the ownership of one-third of this growing wheat crop. The conclusions reached by the trial court were that the three residuary devisees under the will became the owners of the land immediately upon the death of their father and the probate of his will, and as such had the right to all the rents and profits of the land until it might be sold by the executor under order . of court to pay debts of the estate and legacies provided for in the will. We see no error in this conclusion. The rule was announced in the case of Reading v. Wier, 29 Kan. 429, as follows:
“The lands of an intestate descend to the heirs, subject in certain contingencies to the payment of the debts of the intestate. The legal title is in the heirs, and the administrator takes no interest in the real estate, but possesses a naked authority to sell it on license to pay the debts where the personal estate is insufficient.” (p.430.)
It was restated shortly after in the case of Head v. Sutton, 31 Kan. 616, 3 Pac. 280, as follows:
“The rents and profits of the realty of an intestate belong, as against the administrator, to the heirs of the intestate.” (Syl. ¶ 2.)
There is no difference in this respect between the rights of an heir .of an intestate and a devisee under a will, the rule applying to both alike. The reason for the rule is apparent, because no one knows how much of the real estate, if any, may be needed for the payment of debts and legacies until the sale is made, and the owners would be reckless and negligent if they failed to exercise an ownership over such property and use it or collect the x’ents and profits therefrom between the time of the probate of the will and the date of the sale. The rule is quite universal and maintains in most of the other states, and is concisely stated in 23 C. J. 1139:
“The rents, profits and income of a decedent’s real property accruing before his death vest in the personal representative as assets; but those accruing after his death are not assets, but vest in the heir or devisee, even though the rent was expressly reserved to the lessor, his executors, administrators, and assigns; and the fact that the land was sold to pay debts does not deprive the heirs or devisees of their right to rents which accrued between the time of decedent’s death and the time of the sale.”
Since the conclusion of the trial in the district court a stipulation has been filed attempting to submit in a rather unusual way an additional question as to the payment of taxes by the executor on the land involved and the question as to his right to recover the amount so paid. The stipulation couples, this tax question with the claim for one-third of the growing wheat crop as if the wheat might be taken to pay taxes that should have been paid by the owners of the land. We can see no connection between these matters. The executor has the right to pay taxes on land devised when he may need it to pay debts and legacies just the same as he should pay insurance on buildings to protect creditors and charge such expense to the estate, or if he had not already paid them he could sell the x*eal estate subject to the taxes the same as he sells it subject to the mortgage thereon.
“The question in this case is whether it is the duty of the administrator to pay the taxes accumulating on the lands of his intestate subsequent to the death of the intestate. We think not, except when he sells the land. If the administrator needs the lands of the estate with which to pay debts, it is as much his duty to pay all legal charges that may accrue thereon until he sells them, as it is to pay any charges on personal property for the care, preservation and protection of the same while it remains in his custody.” (Reading v. Wier, 29 Kan. 429.)
We see no error in the conclusion of the trial court.
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The opinion of the court was delivered by
Dawson, J.:
This appeal concerns plaintiffs’ claim of right to a way of necessity over the rear part of defendants’ town lot adjacent to plaintiffs’ town lot in the city of Olathe.
The situation of the two lots is as follows: In the city of Olathe, Santa Fe avenue runs east and west. Intersecting it at right angles is Cherry street running north and south. Facing the west and fronting on Cherry street, immediately south of Santa Fe avenue, is defendants’ town -lot which we will designate as lot 1. Adjacent thereto on the south is plaintiffs’ premises, which we will call lot 2. South of lot 2 is a property owned and used by a packing company, which may be called lot 3. Lot 2 is 40 feet 7 inches wide and 120 feet deep. Lots 1 and 3 are about the same size. There is no alley at the rear of these lots. Abutting them on the east is a private school property.
Years ago, before the property on the east was occupied for a private school, access to the rear of lot 2 was available over the rear part of lot 1, and also over the rear part of lot 3, and over the unoccupied tract abutting all three of these lots on the east. For some years lots 1 and 2 belonged to the same owner, one Frank V. Ostrander. On lot 2 Ostrander erected a substantial building and leased it for a bakery. At the rear of this building a bake oven was constructed. One tenant after another conducted a bakery establishment on the premises. As the packing house business grew, access to lot 2 was cut off in its direction. When the private school was established on the east, access to lot 2 over that property was no longer available. Eventually the only way whereby the rear part of lot 2 could be reached by wagons delivering coal for the bake oven and supplies for the bakery was over the rear of lot 1. And for some years, while lots 1 and 2 were owned by Ostrander, a narrow strip of ground fifteen feet wide on the rear part of lot 1 was thus used to serve the necessities of the bakery business conducted on lot 2 by successive tenants of Ostrander.
The bakery business was established in 1903. Later the bakery building was destroyed by fire; but it and its bake oven were rebuilt by Ostrander. The new bake oven cost $2,000. In 1910, Ostrander erected a building on the front part of lot 1 facing Cherry street, but the narrow strip at the rear part of lot 1 continued to be used as a driveway to serve the needs of the bakery business conducted on lot 2. Ostrander died’in 1916, and lots 1 and 2 were devised to his widow Lucinda and to his son and daughter, James and Caroline. The widow and daughter, defendants herein, conveyed their interest in lot 2 to James in 1918, and the title and ownership of lot 2 repeatedly changed thereafter until finally vested in these plaintiffs, Gus and Kate Moll.
Early in 1926 Lucinda and Caroline erected a fence of posts and wire on the south edge of lot 1 to prevent the further use of the fifteen-foot driveway by plaintiffs, and that fact speedily provoked this lawsuit — to enjoin the defendants, Lucinda and Caroline, from closing the fifteen-foot driveway.
On issues joined the trial court heard the evidence and made findings of fact. Conclusions of law were deduced therefrom, viz.:
“1. The plaintiffs are entitled to use the driveway across the east end of lot 1 as appurtenant to the bakery situated on lot 2 for the purpose of hauling fuel and supplies to said bakery and hauling waste, cinders and trash from said bakery.
“2. Plaintiffs are entitled to a permanent injunction against defendants to prevent them from closing said driveway and from maintaining any obstruction of the same so long as the said bakery is maintained and used in substantially its present form.”
Judgment for plaintiffs was entered accordingly. Plaintiffs’ motion to modify the judgment so as to make the injunction perpetual regardless of what use the plaintiffs and their successors might seek to make of the premises of lot 2 was denied. Defendant’s motion for a new trial was overruled. Defendants appeal, and plaintiffs present an informal cross appeal.
So far as the judgment in plaintiffs’ behalf rests on evidence, it is needless to repeat it here. The common owner of lots 1 and 2 erected a bakery building on lot 2 and rented that property for many years to successive tenants, who used the premises for that purpose. With the eventual expansion of business on lot 3 and the development of the school property on the east, it was no longer practical to use the premises of lot 2 for a bakery business without the use of a few feet at the rear of lot 1 as a way of necessity for coal wagons and similar traffic pertinent to a bakery business. That was the situation for a number of years before defendants parted with the title to lot 2. They knew that the then existing use of a small portion of the ground at the east end of their lot 1 was appurtenant to lot 2, and they were bound to know that it would continue to be a necessary appurtenance thereto under their grantees as it had been during the years of defendants’ ownership. If defendants wanted to terminate the use of the driveway over the rear of lot 1 as an appurtenance to lot 2, they could have done so effectively while they owned both lots. That was the time for them to do so. They could not do so of their own volition after they parted with the title without coming to terms with the owners of lot 2.
The pertinent law of such situation is quite simple. Whenever the owner of a tract of land chooses to divide and sell a part of it, and a way of access over the part he retains is necessary to the beneficial use of the part he sells, such a way of necessity will pass as an appurtenance to the part sold, without being expressly stated in the deed of conveyance, unless the situation of the part sold, or the purpose for which it is to be used or granted, shows ttfat no such grant of a way of necessity was intended. (Mead v. Anderson, 40 Kan. 203, 19 Pac. 708.) A right to a way of necessity in behalf of the grantee of land over the adjacent land of his grantor is sustained on the principle that the grant of a thing is presumed to include, as an incident, whatever right the grantor had in connection with it, without which the thing granted would prove practically useless to the grantee. (Whitehouse v. Cummings, 83 Me. 91; 23 A. S. R. 756.) In the case just cited it was said:
“It results from a grant or reservation implied from the existing circumstances in which the grantee — or, in case of a reservation, the grantor — is thereby placed. When a landowner conveys a portion of his lot, the law will not presume it to have been the intention of the parties that the grantee shall derive no beneficial enjoyment thereof in consequence of its being inaccessible from the highway, or that the other portion shall, for like reason, prove useless to the grantor. This species of right of way, therefore, in the absence of anything to the contrary contained in the deed, becomes an incident to the grant indicative of the intention of the parties.” (p. 97.)
In Ferguson v. Ferguson, 106 Kan. 823, 189 Pac. 925, an easement was denied, but the principle of law which governed the present judgment was therein recognized, where it was said:
“When an estate is severed without specific reference to easements for rights of way, easements by implication over the apportioned lands in favor of the other allottees only arise where they necessarily and obviously must arise to give the allottees fair enjoyment oj their several allotments.” (p. 826.)
The pertinent rule of law is thus stated in 19 C. J. 914:
“Where the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easement being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication. The use is continued in the grantee by operation of law, whether the creation of the quasi easement was by the act of the owner himself or by a tenant acting under his authority, and whether this severance is by voluntary alienation or by judicial proceedings.”
While implied easements are less readily conceded nowadays than formerly, especially in rapidly growing urban communities (Wilkins v. Diven, 106 Kan. 283,187 Pac. 665), yet where the beneficial use of the property conveyed by a grantor requires the continuance of the use of an already existing way of necessity over the remaining lands of the grantor, such implied easement or quasi easement passes as an appurtenance to the property conveyed. In Powers v. Ward, 200 Ky. 478, 34 A. L. R. 230, and note, the rule is thus stated:
“Where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous or apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easements, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.” (Syl. If 1.)
See, also, The John Hancock Mutual Life Insurance Company v. Patterson, 103 Ind. 582; McTavish v. Carroll, 7 Md. 352; Crosier v. Shack, 213 Mass. 253; 9 R. C. L. 754-771.
It is suggested by defendants that access to the rear of the bakery building and oven on lot 2 did not altogether depend upon the fifteen-foot driveway across the east end of lot 1; that it was possible to carry in coal, flour and similar supplies by way of the front door of the bakery on Cherry street and on through the bake shop to the workroom and bake oven on the rear. But certainly it was neither practicable nor reasonable to do so. Coal, flour and other supplies are delivered to a bakery in wagon loads, not in arm loads. Nobody would buy lot 2 expecting to use the premises for what they were designed and equipped if the sole existing means of access by delivery wagons was altogether cut off.
Other matters urged in defendants’ behalf have been duly noted. It should need no argument to show that defendants are not at all in the situation of strangers to this lawsuit like the owner of lot B on the south and the proprietor of the school property to the east. Nor have we here a case concerning some claim to a right of way based on license nor on some controverted claim of right resting on parol or prescription. Two of the trial court’s findings of fact read:
“7. There is no practical way of carrying fuel to the rear of said bakery except, through the driveway above described, and the closing of the same would practically destroy the use of said building- and oven as a bakery and would greatly damage the value of the property. The use of said driveway is necessary for the reasonable enjoyment of the use of said property as a bakery.
“8.- The driveway east of the post-office building was improved by placing cinders thereon, and during the ownership of Frank V. Ostrander and up to the time of the conveyance of said lot 2 to James W. Ostrander, and at all times since said driveway has been open, visible, and recognized as the only means of ingress and egress to the rear of said bakery for the purposes mentioned.”
In their brief defendants say: “The evidence we have quoted seems to us quite the contrary.” Mayhap the trial court discredited that evidence to the contrary. At all events the evidence inherent in the circumstances virtually required the trial court to find precisely as it did. We think the judgment of the trial court was eminently correct, and that the use of the narrow driveway at the rear of lot 1 was and is an appurtenance to the premises of lot 2 as conveyed by defendants to plaintiffs’ predecessors in title.
But what shall we say concerning plaintiffs’ cross appeal? It will be seen that the trial court’s judgment was based, and properly so, upon the fact that for years the fifteen-foot driveway was used as a necessary appurtenance to the bakery establishment on lot 2 when both lots were held in common ownership and when the defendants conveyed lot 2 to plaintiffs’ predecessor in title. There is a small part of lot 2 fronting Cherry street, next door south of the bakery, used for a barber shop. The latter has no imperative need for a way of access to the rear of lot 2. If or when plaintiffs’ premises shall no longer be used as a bakery no excuse for subjecting any part of lot 1 to the use of lot 2 will exist. Therefore, the way of necessity would then cease to exist. The presumption that defendants intended that their grantee and his successors in title should reasonably enjoy the premises as they existed and according to their accustomed use at the time lot 2 was conveyed could not equitably be enlarged to include other uses not within the implied intention of the parties at the time defendants conveyed the property to plaintiffs’ predecessor in title. It thus appears that the trial court’s limitations of the extent and duration of the injunction were proper.
The judgment is affirmed in all its parts. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the Union State Bank to recover moneys loaned to Wells H. Chapman and Lida M. Chapman, a part of which was secured by mortgages, and for the foreclosure of the mortgages, and to obtain a judgment for unsecured obligations. The plaintiff recovered and defendants appeal.
One of the mortgages involved was for $3,000, executed on June 6,1921. No question was raised as to the validity of this mortgage or the debt, and in the answer defendants confessed judgment on them, and their admissions so made eliminated any controversy concerning this obligation. They also admitted and confessed judgment for $9,847.97 with interest from October 6, 1925, which he stated was unsecured except a part that was secured by a .chattel mortgage. Among the obligations was one termed “the dollar mortgage,” which plaintiff alleged was given in June, 1921, by defendants to secure a credit with plaintiff bank and for any sums thereafter obtained from the bank or for which they or either of them should be indebted to the bank. The mortgage recited a consideration of one dollar and ■certain covenants, agreements and advancements for which the mortgage was given by defendants on described real estate, and it further contained the statement:
“It being the intention of the parties hereto that this mortgage shall secure .any advancement made from time to time to parties of the first part or either ■of them by the party of the second part, however evidenced, whether by note, check, receipt or book account, and to remain in full force and effect between the parties hereto or assigns until all advancements made by virtue hereof are paid in full with interest,” etc.
Provisions were also made for foreclosure in case of default of the payments of the advancements or if the taxes or insurance should not be kept up thereon. Money was advanced at several times for various purposes, for which the defendant executed a note on November 24,1922, for $2,183 payable six months after date and bearing interest at the rate of ten per cent per annum. This debt was alleged to be secured by the dollar mortgage given for advancements, and the principal complaint of the defendants is over that part of the judgment decreeing that the mortgage be foreclosed to satisfy that indebtedness.
The defendants alleged that the mortgage was signed by them in blank, and was done at the instance of plaintiff to protect them as against a fraudulent claim of another bank, and that by executing the mortgage they would be enabled to defeat a fraudulent mortgage held by that other-bank, and they alleged that the dollar mortgage was given for no other purpose and was therefore without consideration. The mortgage was set forth at length in the petition of plaintiff, and it was alleged that it was given for advancements in the amount of the note, a copy of which was also set forth. There was no denial of the execution of these instruments so that the execution of the same stood admitted in the pleadings. The admission of execution included delivery and implied a completed contract, as it cannot be said to have been executed unless it has been delivered as a complete instrument. More than that the execution of these papers was expressly admitted a number of times in the answers filed h>y defendants, and there was proof, too, that the mortgage was completed when signed instead of being a blank instrument. Aside from the pleadings, Mr. Chapman testified that he considered the mortgage to be given as security for money advanced after it was éxecuted. There was no amendment of the pleadings asked in respect to the execution of the instruments, and the court on the motion for a new trial stated:
“That the defendants, Chapman, had at no time during the trial of the above-entitled case, nor at any time subsequent thereto, asked leave to amend their pleadings so as to deny the allegations of plaintiff’s petition as to the amount advanced under a second or so-called dollar mortgage, and do not now-ask to so amend their pleadings.”
It is well settled that a mortgage may be made to secure future advances as well as for an existing liability of a mortgagor, and if it 'is executed in good faith, it will be regarded as a valid security. (27 Cyc. 1069.) Defendants concede that a valid mortgage may be made to secure advances, but they say that the amount advanced by the plaintiff was less than the amount of thé note which they signed more than a year after the mortgage was executed. This contention is based upon a statement of one of the officers of the bank that the actual cash advanced to defendants was $697.33, but the witness was speaking of cash advanced and not of all payments advanced by the plaintiff for defendants which made up the amount of the note-as shown by the testimony. No error was committed in the foreclosure of the mortgage.
There is a contention that the court should have called a jury to try the case, but an application made by defendants was overruled. In view of the state of the pleadings including the absence of denials and of the admissions of defendants as to the mortgage and note, there was no occasion to call a jury. The validity of the mortgage and the right to a foreclosure were the controverted issues, and these were subjects of equitable cognizance, and a jury was therefore not demandable as a matter of right. (Morgan v. Field, 35 Kan. 162, 10 Pac. 448; Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, and citations; Brush v. Boyer, 104 Kan. 168, 178 Pac. 445; Fisher v. Rakestraw, 117 Kan. 441, 232 Pac. 605.) However, it is said that defendants had pleaded a counterclaim of damages upon the ground that plaintiff had agreed to sell an oil and gas lease executed by defendants and delivered to plaintiff for that purpose, and that the proceeds of the sale would be credited on the indebtedness of defendants. They alleged that the plaintiff had failed to carry out this agreement. So far as the right to a jury trial is concerned, the defendants could not by pleading this claim for damages change the plaintiff’s cause of action and was not entitled to a jury trial of the case as a matter of right. (Brush v. Boyer, and Fisher v. Rakestraw, supra.) Besides, the deposit of the lease with the bank was evidenced by a writing dated April 16,1925. It recited:
“Received this 16th day of April, 1925, oil and gas lease covering (lands described), executed by Wells H. and Lida M. Chapman, said lease to be held by the Union State Bank for sale at the price of $5,442.50, and to be delivered only upon the receipt of said sum. Attached hereto is a copy of oil and gas lease as delivered to the Union State Bank, day and date as above written.”
This was signed by the vice president of the bank.
It will be observed that the writing does not state that the bank agreed to sell the lease or to buy and pay for it. It did not state whether the lease was to be sold by plaintiff or defendants. It did state that it was to be held for sale and was not to be delivered unless $5,442.50 was paid for it. . The lease so deposited and not recorded, was in the nature of an escrow, and perhaps might be regarded as a pledge for the protection of the plaintiff so that in case it was sold by defendants or anyone else, the proceeds could be applied on the indebtedness of -defendants, but the bank did not agree to buy it or even to sell it. It oply agreed to hold it for sale. The bank did not claim to own it or agree to become liable for any amount in case a purchaser for it was not found. The fact that it was mislaid at one time and could not be found did not prevent the defendants from making another lease if a purchaser had been found. No liability on this score was shown, and the denial of a recovery for damages was not error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover $69,250, damages sustained by reason of the negligence of the defendant, a practicing physician, in administering an enema of a twenty-five per cent solution of caustic soda (concentrated lye) instead of an enema of Epsom salts. The plaintiff recovered judgment in the sum of $25,000, from which the defendant appeals.
Special questions, were answered by the jury as follows:
“1. Do you find that the area of the burn caused by the caustic, soda extended beyond the third valve of Houston? A. Don’t know.
“2. If you answer the above question ‘yes,’ how far beyond the third valve of Houston did the area of the burn extend? A.--.
“3. Where do you find the stricture was located with reference to the recto- sigmoid juncture for which Doctor Robinson operated, on or about September 4, 1926, at the Research Hospital in Kansas City, Mo.? A. A little above the rectosigmoid juncture.
“4. Did the plaintiff recover from the effects of the burn to the extent that he was able to spend some time at his office before he dismissed Doctor Coyle, March, 1926? A. Yes.
“5. If you find for the plaintiff, how much, if anything, do you allow him for the following:
(a) Pain and suffering................................... $10,000
(b) Loss of time....................................... 2,250
(c) Medical care and attention ......................... 750
(d) Punitive damages........................................
(e) Permanent injury .................................. 12,000
“6. Did Doctor Robinson, on or about November 1, 1926, dismiss the plaintiff as cured? A. Hospital records show he did.
“7. Did Doctor Coyle, immediately upon discovering that he had injected a solution of caustic soda, and thereafter until plaintiff dismissed him, properly, carefully and skillfully treat the plaintiff for the purpose of alleviating and curing said burn? A. Yes.
“8. If you answer the last question ‘no,’ then state in what respect's Doctor Coyle failed or omitted to properly, carefully and skillfully treat plaintiff for the purpose of alleviating and curing said burn? A. -.”
The defendant had been treating the plaintiff for constipation and in so doing had on several occasions administered an enema. of Epsom salts. On the occasion in question, the defendant negligently administered an enema of caustic soda, thereby burning the rectum of the plaintiff and causing him pain and suffering. The defendant admitted his negligence and his liability therefor.
The principal issues concerned the distance into the rectum that the caustic soda penetrated, the extent and severity of the burn caused by the caustic soda, the consequent injury, and whether or not that injury was permanent.
1. The defendant complains of the following instructions:
“You are instructed that according to the American table of mortality, the life expectancy of a person 39 years of age is 28.91 years. In other words, the average remaining time that he will probably live will be 28.91 years.”
The defendant claims that the court committed error in giving that instruction. The court properly took judicial notice of the American table of mortality, and it was proper to instruct the jury that it could consider that table, with all the other evidence, in arriving at a conclusion concerning the length of time the plaintiff would have probably lived except for the negligent act of the defendant, and in arriving at proper compensation for the permanent injury sustained by the plaintiff, if any. The instruction was not in any way qualified. It, in effect, told the jury that the life expectancy of the plaintiff was 28.91 years, without any reference to his physical condition at the time of the injury. The life expectancy of a person of ordinary health at 21 years of age is 41.53 years, but the life expectancy of a person 21 years old who is afflicted with cancer, tuberculosis, Blight’s disease, or any other of the known diseases with a high percentage of mortality, cannot be 41.53 years.
In 22 C. J. 972 it is said:
“Mortality tables are prima facie, but not conclusive evidence of life expectancy. They are to be accepted only as an aid in arriving at such expectancy, in connecting with other evidence bearing on the probable continuance of life, and may have little or no weight where it is shown that the person whose life expectancy is in question is, or was at the time Of his death, in ill health, afflicted with desease, or engaged in a hazardous employment.”
A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919, and Warders v. Railroad Co., 105 Kan. 4, 5, 181 Pac. 604, support this rule. See, also, 8 Ency. of Ev. 642.
The physical condition of the plaintiff, the diseases, if any, from which he was suffering, the mortality tables, and all other pertinent matters should have been considered in arriving at what would have been the plaintiff’s probable length of life. The jury should have been so instructed. For these reasons, the instruction given was erroneous.
2. Complaint is made of an instruction concerning answers to special questions. On that subject, the court instructed the jury as follows:
“Certain special questions have been submitted to you to be answered and it is your duty to answer them truthfully and fully, and without any regard as to what effect such answers may have on your general verdict, and your foreman will sign the special questions the same as your general verdict. If from the evidence you are unable to answer any question your answer should be ‘We do not know.’ ”
In K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780, the court said:
“And further held, that the court erred in instructing the jury that they might, under any circumstances, answer special questions of fact by merely saying, ‘Don’t know.’ ” (Syl. ¶ 11.)
(U. P. Rly. Co. v. Fray, 35 Kan. 700, 708, 12 Pac. 98; Clark v. Weir, 37 Kan. 98, 102,14 Pac. 533; A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, 577, 15 Pac. 499.)
The instruction was erroneous because there was evidence on which the first question could have been answered. There was evidence which tended to prove that in a human being, beginning at the anus, there are in the lower part of the colon, the first, second, and third valves of Houston and that beyond those valves, there is a portion of the colon known as the sigmoid. The evidence proved that the defendant, for some time after the injury, treated the plaintiff at Coffeyville, where the injury occurred; that thereafter, the plaintiff went to Kansas City, Mo., where he was operated on for the purpose of relieving him of a stricture that existed in the sigmoid portion of the colon; and that following that operation, the plaintiff suffered pain and was in the hospital for a number of weeks, during the major part of which time he was in a precarious condition.
The answer to the first question would have been material because, if the burn caused by the caustic soda did not extend beyond the third valve of Houston, there was evidence which tended to prove that the burn did not produce the condition which made the operation in Kansas City necessary. If that were true, the liability of the defendant would have been decreased greatly. If the question had been so framed as to entrap the jury, or had been so involved that it could not be readily understood, or had concerned any immaterial matter, the question might properly have been refused; but, when submitted, the court should not have instructed the jury that it might answer, “We do not know.”
3. The defendant complains of the introduction of the charts made by nurses giving the record of the treatment of the plaintiff while he was in the hospital in Kansas City, a period of about sixty-one days, according to a statement in the brief of the defendant. They gave in detail the condition of the plaintiff while he was in that hospital and recorded practically everything that was done either by the plaintiff or by the nurses for him. It took approximately one whole day to read those charts. That extensive reading of the charts was unnecessary. The nurses could have testified to all that was competent, and if compelled to do so could have refreshed their memory from the charts. Reading the long details of them may have inflamed the minds of the jury against the defendant and may have caused the jury to return a verdict larger in amount than it should have been. Error was committed in permitting the charts to be read.
A number of other questions are presented, but it is not necessary to discuss them.
The judgment is reversed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy presents the question whether an election by a widow to take under the will for her deceased husband can be set aside where her rights were not fully explained to her at the time of such election. The widow prevailed, and a son of her deceased husband by a former marriage appeals.
The facts are substantially these. William M. Taylor died, leaving a will in which he devised certain personal property in Kansas to his wife and an equity in certain real estate in Nebraska to his son by a former marriage. The wife was named executrix in the will, and qualified as such. On notice from the probate court of Jewell county, Kansas, she appeared and signed an election to take under the will. She proceeded to execute her duties under the will, collecting rents, paying taxes and otherwise administering the estate in Nebraska. The personal property situate in Kansas devised to her under the will was either already hers or under the statute was exempt to her, so that the will in effect conveyed nothing to her. After settlement of the estate in Kansas, she filed application to probate the estate in Nebraska and was met with the objection that she had elected to take under the will in Kansas and therefore was entitled to no interest in the real estate in Nebraska. She thereupon filed an application in the probate court of Jewell county to set aside her election. The application was denied, whereupon she appealed to the district court. After full hearing the district court found that her rights were not fully explained to her by the probate court at the time the election was filed, and that under the facts and admissions there was no equitable estoppel. Her application to set aside the election was allowed.
It is contended, chiefly on the authority of Sparr v. Surety Co., 99 Kan. 481,162 Pac. 305, that the court was without jurisdiction to set aside the election formerly held. We think not. The defendant, Roy Taylor, was interested in that part of the estate which came to plaintiff’s deceased husband through his father, William H. Taylor. The latter had left a will in which he devised to his wife (plaintiff’s husband’s mother) a life estate in the Nebraska' property. She is still living, so that the rights of no third parties or anyone taking under either the will of plaintiff’s husband or her husband’s father, have befen in any manner prejudiced by plaintiff’s attempted election.
“Where no rights have intervened, the probate court has jurisdiction to set aside the election of a widow to take under her husband’s will, upon a showing that it was made under a misapprehension brought about by fraud or mistake, or by the omission of the court to make the explanation required by the statute.” (In re Osborn’s Estate, 99 Kan. 227, 161 Pac. 601.)
It is contended that the proceedings to set aside the election were barred by the statute of limitations. We think not. The plaintiff did not discover her rights until some eight months preceding her application to set aside the election. In Long v. Anderson, 114 Kan. 133, 134, 216 Pac. 1097, it was said in the opinion:
“The widow was no! concluded by action on her part, which was taken under a misunderstanding of the law and in reliance upon which the adverse parties had not changed their situation to their disadvantage.”
It is argued that the probate' court of Jewell county sufficiently explained to the widow the law of Kansas, and that the word “law” used in the statute in this connection means the law of Kansas only, and does not require the probate court to explain the laws, of descents and distributions of any other state; that no fraud was charged in connection with the election to take under the will, and the widow’s mistake, if any, was not such a mistake of fact as would entitle her to a revocation of her election. It appears by the findings of the trial court, which were amply supported by the evidence, that her rights under the Kansas statute- were not fully explained; that she was entitled to the personal property which she received in Kansas even without the will, and that, therefore, there was no occasion for her to elect as far as the Kansas statutory provision was concerned, and she should have been so advised.
Contention that the plaintiff was estopped from asking a revocation of her election to take under the will because she had deliberately made her election as required by law, or because, being named executrix under the will, she qualified and continued to act thereunder until final settlement and discharge, or because she accepted all the personal property and collected the rents under the provisions of the will, and continued to collect the rents after her final settle ment, or because she had the benefit and advice of a competent attorney during all of the time that the proceedings were pending in probate court, cannot be sustained.
We are of opinion that in order for her to be estopped she must have been fully informed both as to her rights under the law and under the will; not necessarily that the probate court should have informed her, but that it must be clearly and unequivocally shown that she made an intelligent choice with full knowledge of all the facts and circumstances, and that because of her acts other parties were placed at a disadvantage. (See Thayer v. Knote, 59 Kan. 181, 52 Pac. 433; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608; Dreisbach v. Spring, 93 Kan. 240, 140 Pac. 195; Weichold v. Day, 118 Kan. 598, 236 Pac. 649; Putbress v. James, 162 Ia. 618, 144 N. W. 607; Cobb v. Macfarland, 87 Neb. 408, 127 N. W. 377.) What has been said disposes of various other contentions of the defendant.
The judgment is affirmed.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one to enjoin the county treasurer from distributing any part of the 25 per cent of the motor vehicle registration fee provided for by law and to command the county treasurer to pay to the city of Hutchinson its proportion of the motor vehicle registration fees under section 4 of chapter 214 of the Laws of 1925. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
Section 68-602 of the Revised Statutes should be noticed. That section reads:
“There is hereby created in each county in this state a special road .drag fund which shall be used for the dragging of legally established county and township roads and mail routes. The county treasurer shall deposit in the special road drag fund the sum of four dollars and fifty cents ($4.50) from each registration fee paid to him for the registration of motor vehicles other than motor cycles or dealer’s license: Provided, That from all registration fees collected after the first six months of any registration year has expired he shall deposit in the special road drag fund two dollars and twenty-five cents ($255) from each registration fee as provided above. From the fees placed in the special road drag fund the county treasurer shall credit to the county for use on county roads and roads that the county is required by law or order of the board of county commissioners to maintain, all that part of the fund collected from residents of cities of the first and second class. The remainder of the fees deposited in the special road drag fund shall be credited fifty per cent to the county for the same purpose and fifty per cent to the township in which the owners reside to be used by the township board of highway commissioners of said township outside the limits of incorporated cities on legally established township roads and mail routes. The special road drag fund shall be paid out only on vouchers approved by the board of county commissioners for the county’s share and by the township board of highway commissioners for the township’s share: Provided, That said vouchers shall only be paid for road dragging: Provided further, That in counties having a population of less than ten thousand (10,000) said special road drag fund may be used for the repairing and maintaining of all established county and township roads and mail routes: Provided further, That all funds remaining in said fund at the end of the registration year shall be transferred by the county treasurer to the county and township road funds respectively.”
That section provides that "from the fees placed in the special road drag fund the county treasurer shall credit to the county for use on county roads and roads that-the county is required by law or order of the board of county commissioners to maintain, all that part of the fund collected from residents of cities of the first and second class. The remainder of the fees deposited in the special road drag fund shall be credited fifty per cent to the county for the same purpose and fifty per cent to the township in which the owners reside to be used by the township board of highway commissioners of said township outside the limits of incorporated cities on legally established township roads and mail routes.”
Section 4 of chapter 214 of the Laws of 1925 reads:
“That section 68-602 of the Revised Statutes of Kansas for 1923 is amended to read as follows: Sec. 68-602. That the motor-vehicle registration fees now provided by law or which may be hereafter provided by law shall be applied to the construction, reconstruction and maintenance of highways in the state in the following manner: Twenty-five per cent (25%) of the motor-vehicle registration fees remaining after the 50$ fee for registration has been sent to the secretary of state, as provided by law, shall remain in the county where it originates, and shall be placed in the township road fund, and shall be divided between the township road fund in the proportion that it bears to its place of origin in the township: Provided, That any unexpended balance remaining in the fund June 30th of each year shall be turned into the county and state road fund. Seventy-five per cent (75%) of said motor vehicle registration fees shall be transmitted monthly by the county treasurer’s to the state treasurer and shall be placed in the state highway fund. The money derived from the motor-vehicle fuel tax as provided by law for the construction, reconstruction and maintenance of highways shall be placed in the state highway fund. For the purpose of meeting the present requirements of our constitution the sum of three hundred thousand dollars ($300,000) of said fund shall be placed quarterly in the state treasury to the credit of the state aid road fund and shall be expended in the various counties of the state in the same proportion as the state highway road fund as hereafter provided upon the state highway system under the direction of the state highway commission, acting in conjunction with the boards of county commissioners: Provided, That the sum of money so applied for any specific project shall not exceed twenty-five per cent (25%) of the total cost of the same, nor be in excess of ten thousand dollars ($10.000) per mile. The remainder of the state highway fund, less any appropriation by the legislature not to exceed the sum of $75,000 for each year made for the maintenance of the state highway commission, shall be distributed to the counties as follows, namely: Forty per cent (40%) of said fund shall be distributed equally amongst the one hundred five (105) counties of the state; sixty per cent (60%) shall be distributed amongst the several counties in proportion to their assessed valuation, based upon the preceding year’s assessment. This distribution shall be made semiannually, on March 1 and September 1 of every year. The fund thus created in the various counties shall be known as the county and state road fund and shall be used for the construction, reconstruction, and maintenance of state roads in the counties: Provided, That not more than twenty per cent (20%) of said fund may be expended on county or township roads or bridges at the option of the county commissioners. All money in the state and county aid road fund at the time this law is adopted shall remain in the county in which said money was collected and shall be credited to said county and state road fund.”
There is nothing in section 68-602 of the Revised Statutes, nor in section 4 of chapter 214 of the Laws of 1925, which directs that any part of the taxes there provided for shall be paid to cities of the first class. The law directs that the money derived from those taxes shall be paid to the state, to the counties, and to the townships for road purposes. The city of Hutchinson is not a township within the meaning of either law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiffs brought an action to recover damages against the defendant Conway and others for slander of title by reason of the oil and gas lease executed by them to defendant Conway not being returned at the expiration of the sixty-day period given in the escrow instructions accompanying the lease to the bank and by reason of a display of dominion and possession of the land being maintained after said period to the detriment of the plaintiffs. The defendant Conway for answer filed a general denial and alleged assignment of the lease to the other defendants long prior to the expiration limit. Trial was had to the court and findings and conclusions were made, and judgment was rendered against two of the other defendants but in favor of defendant Conway, from which plaintiffs appeal.
Farrell, one of the defendants, interested Conway in a proposed oil well on land of the plaintiffs and that of a neighbor, making a total of 1,380 acres, and secured the assent of Conway to drill a well if leases could be procured on both tracts — the 400 acres of the plaintiffs and 980 adjoining. Farrell procured the lease from plaintiffs and had it made in the name of Conway, and plaintiffs sent the lease to the bank with instructions to deliver the lease to Conway if he commenced or caused to be commenced within sixty days from June 13, 1925, a test well on the land described, said escrow letter, written by Glen A. Watkins, one of the pláintiffs, concluding as follows: “Should he fail to comply with said instructions, then this agreement will be considered null and void and said papers will be returned to me.” Farrell very soon thereafter failed to procure a lease on the adjoining land and so reported to Conway, who, on July 10,1925, called the whole matter off as far as he was concerned and assigned the lease to Farrell, who had procured it. Farrell later assigned an interest in it to Byers. Farrell, Byers and the bank were made defendant, as well as Conway. Judgment was 'rendered against Farrell and Byers and in favor of Conway and the bank. The evidence shows that Conway told the bank that the lease might be returned as far as he was concerned; he had no interest in it. The trial court found that Farrell was the agent of Conway to secure the lease, but the relation of principal and agent ceased July 10 when Conway assigned the lease to Farrell. On August 12, the last day of the sixty days given to commence or cause to be commenced a test well on the premises, Farrell and Byers hauled a load of lumber to the grounds for the purpose of erecting a rig. A few days later more lumber was hauled and the rig was constructed. No machinery or other well equipment was delivered on the ground, but Farrell and Byers strenuously opposed the bank returning the lease to plaintiffs. There was an oil excitement on in that vicinity about that time and this land could easily have been rented for $10 per acre. The slander of title complained of by the plaintiffs consists of two items: First, the failure to return the lease at the end of the sixty-day period named in the escrow letter of instructions; and second, the damage and loss sustained by the adverse dominion and possession of the land which hindered and prevented plaintiffs from leasing it to others at a substantial price and the continued assertion of such possession until the interest in leases abated and there was no more such opportunity to lease it.
In the first place, Conway was not instructed by the escrow letter to return the papers. • It was the bank that was so instructed. But-he is charged with this responsibility, because by his assignment of the lease he made it possible for others to demand of the bank that the papers be not returned. We are not advised as to the -terms of the lease, but it is to be presumed without evidence to the contrary that it was capable of being assigned. When Conway assigned it to Farrell only twenty-seven of the sixty days had expired. There were thirty-three days left for him to get another who might drill the test well. He did find Byers, who undertook to do so. It was said a party to a contract cannot relieve himself of the obligations placed upon him in the contract by assigning it. Perhaps not, but what were the obligations of Conway in this connection? He certainly was not obligated to drill the well. The full extent of his obligation was to commence the drilling within sixty days or lose his rights under the lease. If no assignment had been made and no effort made by Conway toward drilling a well, what could plaintiffs have done by way of enforcing the contract? Simply have it declared canceled as the escrow letter provided. The authorities cited in support of this contention apply where there is an obligation or promise of some kind made by the defendant. If one rents a house for his own use for a year at a stipulated rental, payable monthly, and after a few months assigns the lease to another, who fails to pay the rent, there is no doubt that the original tenant can be required to make good his promise. But here the lessee simply has an option to commence within sixty days or lose his lease. True, if he decides to commence, then he has an obligation to perform — to work in a certain way, to use certain material, go to a certain, depth, etc.
It is urged by the appellee that an option is not a binding or enforceable contract. If it is not, the plaintiffs have nothing here on which to stand. To hold such, we fear, would deprive oil districts of a large volume of speculative business. The escrow letter does not name a specific consideration, and we do not have a copy of the lease itself, but it is fair to presume there was a consideration for the option.
We can see nothing wrong in the lessee assigning his lease, which, under the instructions, gave the assignee thirty-three days to commence the drilling of a well. The trouble and loss of which the plaintiffs in this case complain arose out of the conduct of the assignees, beginning more than thirty days after Conway ceased to have any connection with the transaction. Farrell and Byers demanded of the bank that it hold and not return the lease to plaintiffs, and asserted a dominion over the land, claiming to be entitled to hold it after the sixty days had expired without their having in good faith commenced the drilling of a well as the trial court found. This is a species of tort. The evidence shows no connection of Conway with any of it, and the findings exempt him from any part in it. The only claim of connection is that by making the assignment he made it possible for these assignees to commit the tort to the great detriment of the plaintiffs. We have not found any authorities which go that far. Even if Conway had been interested with the other defendants after July 10 in a common purpose, if he said or did nothing to injure the plaintiffs’ title he could not be held responsible for the tortious and wrongful acts of the other defendants.
“Where two or more are acting lawfully together in the furtherance of a common lawful purpose, one is not liable for the unlawful act of another, done in furtherance of the common purposes, without his concurrence.” (26 R. C. L. 767.)
He must do something or consent to the doing of something which is wrong in order to be held liable. There should be some connection of Conway with the tortious acts of the other defendants before they can be ascribed to him so as to make him liable. The motive which is usually observable in such cases is entirely lacking here as far as he is concerned. What benefit or advantage could it have been to him to have these defendants retain the lease and exert a dominion over plaintiffs’ land after the escrow period had ended? We can see nothing which would justify us in holding him liable for the wrongful acts of his codefendant after extricating himself from the transaction on July 10.
Slander of title implies malice. Nothing of this kind appears in the evidence on the part of Conway. Of course, it can be imputed and implied from the surrounding facts and circumstances, but there must be malice in order to complete a cause of action in the form of slander of title.
“Malice, that is, absence of good faith, is an essential condition of liability. . . . It is essential, also, that it should be malicious — not malicious in the worst sense, but with intent to injure the plaintiff.” (3 Bouvier’s Law Dictionary, 3081.)
“To support an action for slander of title special damages must be alleged, and that, too, circumstantially. Such an action cannot be maintained without showing malice and want of probable cause.” (Stark v. Chitwood, 5 Kan. 141, syl. ¶¶ 1, 2; see, also, Bourn v. State Bank, 116 Kan. 231, 226 Pac. 769.)
We think the findings in favor of Conway are sustained by the evidence and see no error in the conclusion reached in his favor.
The decision we have reached makes it unnecessary to consider the cross appeal or the errors complained of by the appellee.
The judgment is affirmed. | [
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