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The opinion of the court was delivered by
Hopkins, J.:
In a motion by the defendant, Margaret Altenburg, to modify the judgment heretofore affirmed by this court (see Benson v. Altenburg, 124 Kan. 296, 259 Pac. 791), it is contended that no personal judgment was sought against her as an individual other than to enjoin her from a sale of the property in controversy; that no facts were pleaded in the petition which would sustain a personal judgment against her. The trial court in a memorandum opinion, among other things, stated:
“The court therefore finds the issues in favor of the plaintiff, and it will be adjudged and decreed that the prayer of plaintiff’s petition be and the same is hereby granted, and that M. B. Altenburg at his death was the owner of the said real property, and that the proceeds of the sale thereof is subject to the payment of one-half of the indebtedness shown by the judgment in the federal court, and that judgment and decrees be entered giving the plaintiff relief to the extent mentioned.”
A portion of the purchase price of the property in question was paid by Coblentz and wife to Mrs. Altenburg. A question is raised as to the correct phraseology of the journal entry which was drawn by plaintiff’s counsel, the contention being made that it was not in accordance with the judgment of the court.
The journal entry as drawn, after reciting details of the trial, reads:
“It is therefore by the court considered, ordered and adjudged: First, That the plaintiff do have and recover of the defendants, Margaret Altenburg as an individual and as administratrix of the estate of M. B. Altenburg, deceased, the sum of ¡¡53,762, the same to bear interest at the rate of 6 per cent per annum from this date, together with the costs of this action, for all of which execution may issue,” etc.
Upon further consideration of the question we are of opinion the pleadings were sufficient to authorize a judgment against the defendant, Margaret Altenburg, but that she individually should be required to pay to plaintiff only the amount of money actually received by her for the property in controversy.
As so modified the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion was filed in this action on May 7,1927 (123 Kan. 550, 256 Pac. 153). All of the facts necessary to an understanding of the action were stated in the former opinion except that, in the thirty-first cause of action set out in the petition, the article complained of did not concern the plaintiff.. For that reason, it necessarily did not state a cause of action against the defendants, and the demurrer thereto was properly sustained.
All the causes of action set out in the petition have been reexamined. So far as the first thirty causes of action are concerned,, the former opinion is adhered to.
A rehearing is denied.
Harvey, J., dissents, being of the opinion that a rehearing should be granted. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one to recover taxes paid under protest. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The action was tried on an agreed statement of facts which disclosed that the plaintiff, a corporation, operated a terminal warehouse elevator at Anthony and local elevators at other points; that the plaintiff made out and returned to the county assessor a statement of the personal property owned by it and subject to taxation; that the amount so shown was $66,535; that the county assessor added $9,745 thereto and raised the valuation to $76,280; that $295 of this amount was for fuel oil which had been omitted from the statement made by the plaintiff and should have been included in it; that $9,450 of the amount added by the county assessor was for “the value of the average amount of wheat which the plaintiff had on hand in its elevator at Anthony”; that wheat was placed in local elevators operated by the plaintiff; that a local warehouse receipt was issued in substantial compliance with the form required by R. S. 34-206, but was not delivered to the persons who deposited the wheat in the local elevators; and that in its place a terminal ware house receipt signed by the plaintiff was given to the person who placed the wheat in the local elevators, which receipt contained the following:
“It is expressly agreed and understood that the Kansas Flour Mills Company may deliver any grade of merchantable wheat on the contract, providing that The Kansas Flour Mills Company pays to - the market difference at Kansas City, Mo., between the grade of wheat covered by this contract and the grade delivered on the date delivery is demanded.”
The taxes on the $9,450 amounted to $322.32, and were paid under protest to prevent the issuance of a tax warrant.
The question for determination is: Who owned the wheat? That depends on whether the transactions by which the wheat had been placed in the elevator constituted sales or bailments thereof. If the wheat had been sold to the plaintiff, it should pay the taxes; but if the transactions constituted bailments, it should not.
Section 82-208, a part of the law concerning the issuance of warehouse certificates, reads:
“Nothing in this act shall be construed as prohibiting or preventing ware-housemen from mingling in common bins grains or seeds, mill products, or any other merchandise or product, of the same grade, and issuing certificates or receipts therefor, and drawing out and shipping said grain or seeds from said bins, provided that a sufficient quantity of such grains or seeds shall be retained and kept in said bins to represent and satisfy all outstanding receipts or certificates.”
The warehouse certificates delivered to the persons who deposited wheat in the elevator differed from the certificate required to be issued by R. S. 34-206, in this — the certificates issued provided that wheat of a different grade might be delivered, while the law contemplates that wheat of the same grade should be delivered.
In Scott v. Schultz, 67 Kan. 605, 73 Pac. 903, the court said:
“Where personal property is delivered by the owner to another for use and the identical thing delivered is to be returned, the transaction is a bailment and there is no transfer of title; but if it is stipulated that the one to whom it is delivered may return another thing of the same kind, or an equivalent in value, or otherwise, it will ordinarily constitute a sale and effect a change of title.” (Syl. ¶ 1.)
In Bonnett v. Shipping Association, 105 Kan. 121, 181 Pac. 634, this court said:
“Plaintiff deposited grain in an elevator with the understanding that it was to be indiscriminately mixed in a mass with other grain from which the owner of the elevator had the privilege of shipping. There was no agreement that the elevator company would keep on hand an amount of wheat of like grade and quantity until plaintiff saw fit to dispose of his wheat, but it was the inten tion of plaintiff, when the price was satisfactory, to present to the elevator owner his scale ticket and receive the prevailing market price for the wheat. Held, that the transaction constituted a sale, and not a bailment.” (Syl. ¶[ 1.)
In Morse v. Grain and Ice Co., 116 Kan. 697, 229 Pac. 366, this court declared that:
' “Placing wheat in an elevator by the grower under a stipulation that 'he should have the right to sell or to withdraw the said wheat, or wheat of like grade and quality,’ does not constitute a bailment thereof, and the money arising from a sale of the wheat by the elevator company does not constitute a trust fund in the hands of the company.” (Syl. If 1.)
In Zuber v. Minshall, 123 Kan. 595, 256 Pac. 806, the rule was declared to be that—
“Where grain is placed in an elevator but not specifically sold at the time of its deposit therein, the depositor retaining the right to elect to demand the return of the grain deposited or the delivery of other grain of like grade, the transaction constitutes a bailment.”
In the present action, there was not retained the right to elect to demand the return of the grain deposited or the delivery of other grain of like grade. The contract was to be satisfied by the return of any merchantable grain and payment for difference in value.
Because the plaintiff had the right to return any merchantable wheat and pay the difference in value, the possession of the wheat by the plaintiff was not that of a bailee; it was the owner of the wheat, and the wheat was properly assessed as the property of the plaintiff, who must pay the tax thereon.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action between a daughter and her father in which it was asked that certain funds should be declared a trust fund, held for plaintiff’s benefit, also for the specific performance of certain agreements, and if performance could not be had there should be a recovery of a money judgment. The court found the issues in favor of the defendant and rendered judgment in his favor, from which plaintiff appeals.
From the testimony and findings it appears that the land in question, an eighty.-acre tract, was purchased by Johnson in 1899, and paid for out of his own funds, but that he had caused the deed to be made in the name of his wife, Jennie Johnson. She died intestate while the title stood in her name, leaving as her heirs the defendant and the plaintiff, her only surviving child. After her death he conveyed to his daughter, an undivided one-half interest in the real estate, reserving, however, the use and profit of it during his natural life, and since the execution of the deed the defendant has been in the continuous possession of the entire tract. It was the understanding of the parties to the deed that the reservation gave him the exclusive use of all the profits of the tract during his life. A lease of the land was made for mineral purposes, and it was agreed that the royalties or mineral productions therefrom should be equally divided between plaintiff and defendant and all of the moneys received from leases and royalty interests were actually divided in accordance with their agreement. One royalty deed was executed for a consideration of $27,500 cash, and a second one for a consideration of $27,500 cash, and pursuant to the agreement these amounts were equally divided between the parties, each receiving $27,500. At one time it was determined that the parties would move to Newton, and a residence property was purchased for $6,000, and subsequently sold and conveyed by plaintiff for $5,600. She had made improvements upon the residence property before the sale' of the value of $1,000, and the court held that that $1,000 should be deducted from the sale price of $5,600, and that defendant was entitled to have one-half of the balance of the sale price, amounting to the sum of $2,300. There were household goods, furniture and fixtures, which the parties had bought at a cost of $1,372, to which each had contributed equally, and these were now in the possession of the plaintiff. This property was held to be of the value of $500, and that plaintiff was entitled to recover one-half of the same, amounting to $250.
Complaint is made of the admission of parol evidence relating to the payment of the consideration recited in the deed to Mrs. Johnson. It is contended that the evidence of defendant as to consideration operated to vary and contradict the terms of the instrument and should have been excluded. The evidence was not offered to avoid the deed, and it was not in fact a contradiction of its terms. Who paid the consideration or in what it was paid, was not stated. The parol evidence rule does not exclude proof of the real consideration of the instrument, whether the amount named was the actual consideration, or whether it was paid in money or property, and by whom it was paid, may be inquired into and shown by parol proof. (Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Roseman v. Nienaber, 100 Kan: 174, 166 Pac.. 491; 22 C. J. 1161-1168.)
Neither do we find any error in the admission of the testimony of the witness Branine as to the statements of the parties concerning agreements and understandings respecting the reservation of the deed from defendant to plaintiff or in .respect to the income tax inquiry. It was proper to show what the understanding and agreement of the parties was as to whether the reservation covered the use of the entire tract or only one-half of the same.
. It is further contended that the evidence did not justify the finding of the court of an agreement as to the division of the oil royalties. The evidence appears to be sufficient to show that the parties orally agreed that the proceeds of the royalties sold should be divided equally between them. Both parties joined in the transfers of the oil interests which had been reserved, and no reason is seen why the parties could not by agreement dispose of the interests of plaintiff and defendant. It is unnecessary to consider what the rule of division would have been if no agreement had been made. While plaintiff alleged that she was induced to enter into the agreement for the division of royalty money by the fraud of defendant, we think the court was warranted under the evidence in holding to the contrary on that charge. So far as consideration is concerned, the interests of the parties and the nature of the transaction make it clear that there was no lack of consideration for the agreement.
There is a contention that the court erred in holding that the property purchased for a home in Newton was jointly owned by plaintiff and defendant. It was shown that the purchase of the property for joint use was discussed, and an agreement was reached that each should pay one-half of the price, which was $6,000. The property was acquired when father and daughter, who was then unmarried, were living harmoniously together, and for the purpose of procuring a home for both. It was agreed that the title to the property thus jointly purchased should be placed in the name of the plaintiff. Nothing in the evidence indicates that any part of the money advanced by the father was a gift or an advancement to the daughter. The manifest purpose was that each should share equally in buying a common home for both, to be owned, by both, and the title was placed in the name of the daughter at her request for convenience, and nothing was said to the effect that the entire ownership of the property should be in her. Each paid one-half of the price for a common home, and it further appears that each contributed one-half of the cost of the furniture, fixtures and household goods with which their joint home was equipped. The confidential relation between the father and daughter, as well as the circumstances, all tend to show that each owned one-half of the property. While the title was placed in the daughter, enough was shown to raise a trust by implication. It is urged that such a trust concerning the real estate was not created because it was not in writing, signed by the plaintiff, citing R. S. 67-401. That provision, however, excepts such trusts as may arise by implication of law, and as we have seen the confidential relation of the parties and the circumstances unite in showing that it was the intention of the parties to create a trust, that there was an obligation on plaintiff to hold the property for the benefit of both, and .under the circumstances it would be inequitable for the plaintiff, in whom the legal title was placed, to hold the property as against the joint owner, her father. That trusts of this character may arise by implication of law, see Silver v. Howard, 106 Kan. 762, 190 Pac. 1, and other authorities there cited.
Error is assigned on the refusal of the court to find that a trust agreement had been made between the parties in settlement of their controversy. It appears that at one time when there was a dispute between the government and these parties as to the amount of tax due and by whom it should be paid, it being contended by plaintiff that the officer tried to make her pay a tax on all of the proceeds of the royalty sales, there was a suggestion that a compromise and adjustment of property interests be made so that their interests and rights might be definitely declared and understood. What was called a trust agreement was drawn up, but when it was presented to defendant he positively refused to sign the proposed agreement. Defendant testified that he had nothing to do with the proposed agreement, and it is conceded that he refused to sign it. Whatever the statements of the parties may have been respecting the proposed 'compromise, it did not culminate in an agreement, and hence the court did not err in refusing to find that one had been made. . The disputed facts must be regarded as settled by the findings of the trial court, and we see no good reason to set aside its findings or its conclusions.
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The opinion of the court was delivered by
Herd, J.:
This is a wrongful death and survival action arising out of an automobile accident. The City of Kansas City and Kansas City police officers appeal from a jury verdict finding them 18% at fault for the accident.
The facts are that on the night of July 29, 1981, and in the early morning hours of July 30, 1981, Delmar Henley was drinking with friends at the Sixteenth Round bar located at 2847 Roe Lane, Kansas City, celebrating his sister-in-law’s birthday. Henley was very drunk, having consumed, by his own estimate, 29 to 30 beers and 10 “kamikazees”. He stumbled around, knocked over chairs and was belligerent, loud and obnoxious. Janice Heckman, the bartender, asked Henley to leave. Henley refused and Ms. Heckman called the Kansas City police. Before the police arrived, all of the bar patrons, including Delmar Henley, left the bar and migrated to the adjoining parking lot.
According to witnesses, two police officers arrived at the scene while Henley was in the parking lot. The officers got out of their cars, approached to within four or five feet of Henley and observed his intoxicated condition. The policemen, Officers Conchóla and Gorham, instructed those patrons remaining in the parking lot to leave the scene. Everyone complied, leaving on foot, except Henley, who left in his car. These same witnesses testified the officers told Henley to get in his car and leave. Henley corroborated this testimony. The policemen denied these statements, testifying instead that they did not see Henley and that there was no disturbance in the parking lot while they were there. Testimony of two other officers who arrived at the parking lot after it had been vacated corroborated the testimony of Conchóla and Gorham.
Janice Heckman testified that when Delmar Henley drove out of the parking lot he veered his car into the southbound lane of Roe Lane, heading north. His action nearly resulted in a collision with a southbound Kansas City police car, which stopped to avoid an accident. Henley then swerved into the proper traffic lane and proceeded north, as the policeman continued south on Roe Lane.
Simultaneously with these events, James E. Fudge left his home with his son, Jamie, to deliver Kansas City Star newspapers to coin-operated dispensers in Wyandotte County. Fudge was driving south on Roe Lane when Henley’s car approached from the opposite direction, swerving from lane to lane. Henley’s car collided with Fudge’s delivery van, throwing Fudge out the open door and pinning him beneath the van until firefighters and emergency medical personnel were able to lift the van off him. James Fudge died twenty days later of injuries received in the accident.
The results of a blood alcohol test taken shortly after the accident showed Henley’s blood alcohol level to be .26%. As a result of the accident, Henley was convicted of vehicular homicide and served six months in jail.
The wife and children of James Fudge brought a wrongful death and survival action against Delmar Henley and the City of Kansas City. After a one-week trial, the jury found the decedent 7% at fault, Henley 75% at fault, and the City of Kansas City and the police officers 18% at fault and awarded damages in the amount of $1,095,103.66. The City of Kansas City and the police officers perfected this appeal. Henley was not active in the trial and is not a party to this appeal.
The first issue we will consider on appeal is whether the City of Kansas City was immune from liability for the actions of its law enforcement officers in this case. Determination of this primary issue requires an examination of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. We recently reviewed the concept of governmental immunity and its common-law and statutory history in this state and need not repeat that background discussion here. See Hopkins v. State, 237 Kan. 601, 608-09, 702 P.2d 311 (1985).
Basically, the Kansas Tort Claims Act makes- governmental liability for tort claims the rule (K.S.A. 75-6103[a]), subject to numerous exceptions (K.S.A. 75-6104). Appellants argue this case fits within three exceptions to the general rule: K.S.A. 75-6104(c), (d) and (m). Prior to considering the application of these exceptions to the present case, we must first consider a preliminary issue.
Before a governmental entity can be liable for damages there must be (1) a negligent or wrongful act or omission by one of its employees; and (2) the employee (a) must be acting within the scope of his employment, and (b) under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. Hopkins v. State, 237 Kan. at 609; K.S.A. 75-6103.
In order for an individual to be liable for a negligent or wrongful act, there must be a duty to act. Appellants, relying upon the “public duty doctrine,” argue the City of Kansas City and its police officers did not owe a duty of care to James Fudge. The public duty doctrine provides a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party. Under this doctrine, the police officers owed a duty to the public at large, rather than to any individual. While this issue is raised for the first time on appeal, and thus may not ordinarily be considered (Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 [1984]), we hold that because it involves a legal issue arising from proven facts determinative of a significant issue in the case, it will be considered as an exception to the rule. Wortman v. Sun Oil Co., 236 Kan. 266, 271, 690 P.2d 385 (1984); Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).
Appellants find support for their argument in Hopkins v. State, 237 Kan. at 611, where we stated:
“Defendants correctly state that, as a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Robertson v. City of Topeka, 231 Kan. at 363. Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.” (Emphasis added.)
While Hopkins did not turn on this issue and is thus distinguishable from this case, the foregoing statement of law is the key to the police duty in this case. Where the police are subject to guidelines or owe a specific duty to an individual, the general rule does not apply and the police owe a special duty accordingly. Here, the Kansas City Police Department had a standard operating procedure manual which detailed mandatory procedures for handling a variety of police situations. This manual was not made a part of the record. However, the police were also subject to a General Order which set out the procedures to be followed by the police in handling individuals incapacitated by alcohol or drugs. That order (General Order 79-44) was made a part of the record and provides in pertinent part:
“An individual, male or female, who is incapacitated by alcohol or drugs, and because of such condition, is likely to do physical injury to himself or herself or others if allowed to remain at liberty will be taken into protective custody and processed in the following manner . . .
Thus, the police officers had a duty to take the intoxicated Delmar Henley into protective custody. Appellants argue the officers’ testimony that they did not see Henley and were unaware of his intoxicated condition relieves the City of any liability. However, there was also testimony that the police saw Henley from a close proximity and that because of his staggering and belligerent demeanor, the police could not have avoided noticing his intoxicated condition. This conflicting testimony gave rise to a question of fact which was resolved against appellants by the jury.
While we have determined that the police owed a special duty to Delmar Henley, we are now faced with the question of how that special duty became an obligation to James Fudge. The controlling case on this issue is Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). There, we adopted Restatement (Second) of Torts § 324A (1965), which provides in pertinent part:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Emphasis added.)
We reaffirmed Schmeck in Cansler v. State, 234 Kan. 554, 566-67, 675 P.2d 57 (1984), and Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 295, 672 P.2d 1083 (1983).
The police officers should have realized that taking Henley into protective custody was necessary for the protection of third persons. Their failure to do so significantly increased the risk that Henley would cause physical harm to others. Accordingly, the City of Kansas City is subject to liability to James Fudge for the officers’ failure to take Delmar Henley into custody.
We now turn to the issue of whether appellants are immune from liability under any of the exceptions to the Kansas Tort Claims Act. Appellants contend three exceptions are applicable to the facts of the present case: K.S.A. 75-6104(c), (d), and (m). We will first consider 75-6104(m). That section provides an exception for “failure to provide, or the method of providing, police or fire protection.” We discussed this exception in Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 877 (1984), stating:
“We believe subsection (m) is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized for such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. We do not believe subsection (m) is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to the wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.”
The police action in this case does not fall within the scope of K.S.A. 75-6104(m) and the appellants were not immune from liability on this ground.
K.S.A. 75-6104(c) creates another exception from liability for:
“enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution.”
This subsection is inapplicable because appellants’ liability is based on the police officers’ failure to follow mandatory internal rules and not for failure to enforce the laws against driving under the influence of alcohol.
K.S.A. 75-6104(d) grants immunity for:
“any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
We discussed this exception as it relates to the actions of police officers in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). In Robertson, the plaintiff called the Topeka city police to seek their assistance in removing an intruder. When the police came, they ordered the plaintiff to leave the premises and fifteen minutes later the home burned. We refused to impose liability upon the City or the police because the police actions were discretionary and protected under K.S.A. 75-6104(d). We explained why the City and individual police officers were not liable:
“It would be virtually impossible for police departments to establish specific guidelines designed to anticipate every situation an officer might encounter in the course of his work. Absent such guidelines, police officers should be vested with the necessary discretionary authority to act in a manner which they deem appropriate . . . .” p. 362. (Emphasis added.)
Following Robertson, we decided Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982). That case involved the question of whether or not a governmental entity’s decisions to place or not to place traffic signs fell within the purview of K.S.A. 75-6104(g), a comparable subsection dealing with road signs. We held the Secretary of Transportation had “adopted the Manual on Uniform Traffic Control Devices for Streets and Highways” and the employees operating under the manual were exercising professional judgment and not discretion and were therefore not immune as a matter of law; therefore, summary judgment was improper in this instance.
Our most recent case in point is Jackson v. City of Kansas City, 235 Kan. 278. There, two fire trucks collided, injuring the firemen and damaging property in the vicinity of the collision. A fire department bulletin set a maximum speed limit of 35 m.p.h. for department vehicles. We concluded once the speed limit was established “the City no longer had discretion” and held the City liable if the trucks exceeded the limit.
In the present case the City adopted a specific mandatory set of guidelines for police officers to use with regard to handling intoxicated persons. The guidelines left no discretion and K.S.A. 75-6104(d) is inapplicable to the facts at hand.
We conclude the officers’ actions do not fall within the exceptions found at K.S.A. 75-6104(m), (c) and (d) and accordingly, appellants were subject to liability under the Kansas Tort Claims Act.
Appellants next argue since K.S.A. 1985 Supp. 41-715 makes it a misdemeanor for any person to “knowingly” provide liquor to “any person who is physically or mentally incapacitated by the consumption of’ alcohol, this court should impose civil liability upon bar owners for such acts. We rejected this argument in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985). In Ling, we held that at common law dispensers of alcohol are not liable to the victims of intoxicated tortfeasors. We then refused to change the common law on grounds that the legislature is best equipped to make such a substantive public policy change. 237 Kan. at 640. Ling is controlling on this issue and there are no grounds for imposing liability upon the vendor.
Alternatively, appellants argue K.S.A. 60-258a requires the fault of the vendor be compared with all other parties even if the vendor cannot be held liable. The common law, as Ling makes clear, holds a vendor is not liable to the victims of intoxicated tortfeasors. The vendor is not at fault as a matter of law; therefore, there remains nothing to compare. This issue is without merit.
Appellants next object to jury instruction 10, which pertains to the credibility of a witness. Appellants contend the instruction should have stated that Delmar Henley was convicted of a crime. They contend Henley had an “extensive criminal record” and had been convicted of vehicular homicide as a result of the accident in this case. There is no evidence of Henley’s criminal history in the record, nor evidence of a proffer of his “extensive criminal record”; however, the record does establish a conviction for vehicular homicide and shows he served six months in jail for this crime. Since appellants made no effort to introduce evidence of Henley’s “extensive criminal record” they cannot complain of error on appeal.
As for Henley’s conviction of vehicular homicide, K.S.A. 60-421 requires that before evidence of a conviction may be used to impeach a witness it must be evidence of a crime involving dishonesty or false statement. The crime involved here is vehicular homicide, which is defined at K.S.A. 21-3405 as:
“the killing of a human being by the operation of an automobile ... in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
Vehicular homicide does not involve dishonesty or false statement and, hence, failure to give the instruction was not error.
Appellants make numerous objections to Instruction 12, which pertains to the parties’ contentions. Appellants’ first objection relates to the following statement found in the instruction:
“Plaintiffs claim that defendants, City of Kansas City, Kansas, and Officers Richard Gorham and Robert Conchóla caused or contributed to the injuries and death of James E. Fudge in one or more of the following respects:
“(a) In failing to stop and perform field sobriety tests or other tests to determine the intoxicated condition of Delmar Henley.”
Appellants object to this instruction on the ground that the action it requires is discretionary under the Kansas Tort Claims Act. The trial court ruled that the clear and mandatory provisions of the standard operating procedures manual required the police to stop a car swerving out of a parking lot and into the wrong lane, as Delmar Henley’s did. Appellants contend no general order, operating procedure, or regulation imposes this duty. The standard operating procedures manual is not a part of the record. It is appellants’ burden to create a record sufficient for review. In the absence of such a record, error will not be presumed. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602-03, 647 P.2d 1268 (1982). Accordingly, error cannot be predicated on this ground.
The appellants contend it was error not to instruct the jury that James Fudge was not wearing his seat belt. Such an instruction would have been error. In Ratterree v. Bartlett, 238 Kan. 11, 18, 707 P.2d 1063 (1985), we adopted the following language from Taplin v. Clark, 6 Kan. App. 2d 66, Syl. ¶ 1, 626 P.2d 1198 (1981):
“A passenger in an automobile has no legal duty to use an available seat belt in anticipation of the driver’s negligence, and evidence of nonuse is inadmissible under the comparative negligence doctrine either on the issue of contributory negligence or in mitigation of damages.”
Just as a passenger has no duty to anticipate the negligence of the driver of a vehicle, a driver need not anticipate the negligence of the drivers of other vehicles and has no duty to use an available seat belt.
Appellants also allege error in the court’s failure to instruct on the defendant’s allegations of fault against the Sixteenth Round bar and its bartender, Janice Heckman. Given the fact that Kansas has no dram shop liability, this was not error. We find no error in Instruction 12.
For their next contention, appellants argue Instruction 13 should have contained the following language:
“While as a general rule it may be said that a driver, absent knowledge to the contrary, may assume that an approaching vehicle will obey the rules of the road and thus get over and stay on its own side of the road, yet he will not be permitted to act on the assumption where the factual basis for it has disappeared, as for example, where it appears that the driver of such vehicle on the wrong side of the road either will not or cannot turn back to his own side.
“The purpose and object of rules of the road are to avoid accident, but one is not justified in asserting his right to use his side of the road when, by not doing so, he can avoid a collision. The fact a motorist is on the proper side of the road does not entitle him to make an unreasonable use thereof nor relieve him of the duty to exercise due care to avoid injury to others, including those who may be on the wrong side of the road.”
There was no evidence introduced to support this theory; therefore, it was not error to refuse to give the requested instruction.
Appellants next contend Instruction 16 broadens the jury’s consideration into areas of discretionary activities. The appellants requested this instruction and therefore waived any objection to it.
Appellants contend the court should have instructed the jury that Delmar Henley’s negligence was an intervening cause which cut off the liability of the City. This contention is erroneous because the alleged negligence of the City was in failing to place Delmar Henley in protective custody. Thus, the City’s negligence and Delmar Henley’s negligence were concurring causes of the injury.
Appellants object to Instruction 19, which allowed the jury to assess fault against “Police officers of Kansas City, Kansas, including but not limited to Officers Richard Gorham and Robert Conchóla.” Appellants claim prejudice as the introduction of this phrase to the pretrial order on the morning of trial was their first notice that police officers other than Gorham and Conchóla would be involved. The appellants made no objection to amending the pleading, nor did they request time to prepare for this “new claim.” The potential fault of other police officers had been an issue in the case from the beginning because of the appellees’ allegation that Delmar Henley almost hit a third police vehicle after leaving the bar parking lot. We find no error.
Appellants contend that the verdict form was improper because items of damages were separated into several categories and the form “allowed the jury to have numerous blanks to complete, which understandably led to a larger verdict.” Appellants cite no authority supporting their position. Further, they did not object to the form. In order to overcome their failure to object, appellants must show the verdict form, as a part of the instructions, was clearly erroneous. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984).
We discussed the problem of verdicts which are irregular as to form in Mackey v. Board of County Commissioners, 185 Kan. 139, 150, 341 P.2d 1050 (1959).
“The trial court submitted two verdict forms to the jury. The jury by mistake completed both verdict forms and returned them into court. The one form indicated that the jury had found for the defendant on each count of the petition. The other, intended as a verdict form should the plaintiff be entitled to recover, was worded so that the jury was required to fill in the amount which the plaintiff was entitled to recover on each of the six counts. In each of these six blank spaces was written thé word ‘None.’ The verdict which the jury returned was clearly apparent from both forms. The plaintiff s objection has no merit. So long as the verdict manifests the intention and findings of the jury upon the issues submitted to them, it will not be overthrown merely because of defects in form.”
We find further discussion at 76 Am. Jur. 2d, Trial § 1141:
“In the absence of some express provision of the practice statutes or the governing rules of practice prescribing the form of the general verdict to be returned, there is no hard and fast rule governing such form. The responsibility of returning a true verdict rests with the jury, and it is a matter of accommodation, and not a legal requirement, that the trial judge supply the jury with the proper forms in any given case. Any words which convey the meaning and intention of the jury are usually deemed to be sufficient. A verdict is sufficient in form if it expresses the decision of the jury on the issues submitted so as to enable the court to intelligibly render a judgment thereon. So long as the verdict manifests the intention and findings of the jury upon the issues submitted to them, it will not be overthrown merely because of defects of form.”
The verdict in this case clearly expresses the intentions and findings of the jury and we find no error.
Appellants next allege the trial court erred in prohibiting the admission of evidence of Deborah Fudge’s remarriage, including voir dire of the jurors about whether any of them knew Deborah (Fudge) Abels or her current husband. This prohibition was based on the trial court’s conclusion that the potential prejudice of such evidence outweighed its probative value. In Pape v. Kansas Power & Light Co., 231 Kan. 441, 447, 647 P.2d 320 (1982), we adopted a rule excluding evidence of a surviving spouse’s remarriage in mitigation of damages. The appellants are taking a different approach by arguing the purpose of admitting the evidence is to protect the integrity of the jury process. We hold evidence of the remarriage of a surviving spouse is inadmissible in a wrongful death case and the court correctly exercised its discretion in refusing to admit the evidence. Cf. Betts v. General Motors Corp., 236 Kan. 108, 114-15, 689 P.2d 795 (1984); Talley v. J & L Oil Co., 224 Kan. 214, 220, 579 P.2d 706 (1978).
The jury awarded $50,000 for pain, suffering, disabilities or disfigurement and any accompanying mental anguish. Appellants contend the evidence does not support this award. Mr. Fudge lost consciousness a few minutes after the accident and never regained consciousness. Medical records showed he did not respond to stimuli. Appellants’ witness, Dr. Alan Hancock, the Wyandotte County Coroner, testified Mr. Fudge was in such a deep state of unconsciousness he could have felt no pain. He further testified that records of KARE (a Kansas City emergency ambulance service) showed Mr. Fudge lapsed in and out of consciousness for ten minutes after the accident. Shirley Magee, Deborah Fudge’s mother, countered with testimony that three days after the accident James Fudge squeezed her fingers twice in response to things she told him about the children, and that it happened two or three more times before he died. Thus, the issue was controverted, resulting in a question of fact for the jury.
In Tucker v. Lower, 200 Kan. 1, 9, 434 P.2d 320 (1967), we held:
“There is no exact yardstick by which pain and suffering can be measured and the various factors involved are not capable of proof in dollars. For this reason the only standard for evaluation is such amount as twelve reasonable persons estimate to be fair compensation when that amount appears to be in harmony with the evidence and arrived at without passion or prejudice.”
The amount arrived at by the jury in this case is supported by competent evidence and there has been no showing that the award was the result of passion or prejudice. We find no error.
Appellants next object to the exclusion of a portion of a witness’ deposition relating to the speed of the vehicles. The witness, Buford Botteron, died before trial. The judge excluded this evidence because the deposition laid no foundation for showing that the witness was in any position to determine the speed of the vehicles. Appellants do not address the foundation issue and the deposition is not part of the record on appeal. We find no error.
Appellants next argue the jury’s reconsideration of its verdict is reversible error. The first verdict form returned by the jury contained an award of $632,000.00 for loss of time or income between July 30,1981, and August 20,1981. This was an obvious mistake. Upon observing the error, the judge pointed it out to the jury and asked them to make sure the verdict reflected their intent. The jury retired for a few minutes and returned with a new verdict form which gave no compensation for the July 30-August 20 period. Under K.S.A. 1985 Supp. 60-248(g), the trial judge has discretion to have the jury correct its defective verdict. That statute provides:
“Whenever the jury consists of 12 members, the agreement of 10 jurors shall be sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict shall be by agreement of all the jurors. The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is their verdict. If less than the required number of jurors agree, the jury must be sent out again. If agreement of the required number is expressed, and no party requires the jurors to be polled individually, the verdict is complete, and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.”
The trial judge did not err in allowing the jury to reconsider its verdict.
Appellants next contend the evidence is insufficient to sustain the jury’s damages award of $1,095,103.66. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene. Manley v. Wichita Business College, 237 Kan. 427, 432, 701 P.2d 893 (1985). Applying this standard, the award should be upheld.
The appellees presented expert testimony by David E. Shulenburger, who is a professor of business administration at the University of Kansas. His calculations showed a present value of lost wages of $499,739.00, based on a projected lifetime earning of $1.7 million. He further figured a present value of $46,981 for lost services (the economic value of work performed in and around the home). These figures were based on projections from the date of trial. Added to that were the value of lost wages and services since James Fudge’s death to the date of trial for a total of $688,254.00. The lifetime totals were based on an assumed rate of inflation of 5.39% for the lost services (which represents the 31-year average annual increase from 1950-1981) and an annual increase in wages of 5.24% (which represents the national annual average for the twenty-five years from 1957-1982). These present day values assumed an investment (in government bonds) at the then current rate of 11.25%. However, the average return for the previous 25.8 years on government bonds has been 7%. Use of the 7% figure would produce a present value for wages and services, from the date of trial, in the vicinity of $900,000.00. The jury verdict of $1,095,103.66 was well within this limit where the wages and services lost before trial ($141,534) are added in, and the award should be upheld.
The judgment is affirmed. | [
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This original action in discipline was filed by Arno Windscheffel, disciplinary administrator, against Roger D. Thompson, of Junction City, an attorney admitted to the practice of law in Kansas. As no exceptions were filed to the report of the hearing panel of the Board for Discipline of Attorneys, the facts as determined by the panel are not in' dispute and will be summarized herein. The panel considered three counts against the respondent.
COUNT I
In 1977, respondent’s wife was injured in an automobile accident. Unbeknownst to Mrs. Thompson, respondent filed a civil action on her behalf which she had not authorized. Respondent effected a settlement of his wife’s case and collected $3,000.00 from the defendant’s insurance carrier. The draft was “payable to Roger D. Thompson and Penelope M. Thompson, individually and as husband and wife.” Respondent endorsed or caused to be endorsed his wife’s name on the draft. The insurance carrier also required a release and respondent caused a facsimile of his wife’s signature to be placed on the release and then secured its notarization by a notary public in his law office. Mrs. Thompson had no knowledge of the settlement.
COUNT II
In 1982, respondent and Mrs. Thompson were having marital difficulties and they separated on or about June 9, 1982, when Mrs. Thompson moved to Kansas City. While separated and prior to the filing of any divorce proceedings, respondent borrowed the sum of $4,689.22 from State Farm Mutual Life Insurance Company on two life insurance policies owned by Mrs. Thompson. Respondent caused a facsimile of his wife’s signature to be placed on the loan applications and on the checks issued for the loan proceeds. Ultimately, respondent paid Mrs. Thompson $4,000 in partial reimbursement of the funds obtained. The loans were secured without the knowledge or consent of Mrs. Thompson.
On August 15,1983, divorce proceedings were commenced by Mrs. Thompson in Johnson County. An ex parte restraining order was issued that date restraining respondent from “encumbering or disposing of any of the parties’ property” and in addition ordering him to pay his share of the 1982 federal income tax refund to the clerk of the district court. When the tax refund was received, respondent did not pay his portion to the clerk in direct violation of the order. Respondent sought no modification of the order.
On December 13, 1983, respondent borrowed the sum of $41,133.35 from the Central National Bank of Junction City and secured the loan with a mortgage on the residence of the parties. The mortgage was executed by respondent as a single man notwithstanding that the parties were not divorced until February 16, 1984.
COUNT III
Respondent was a life-long acquaintance of Maud C. Wright, an elderly lady of approximately 90 years of age, and had been her attorney for several years. Mrs. Wright was in failing health but mentally competent when, in September 1981, she suffered injuries in an accident in her home. Following hospitalization she was moved to a nursing home and it was determined that her home in Junction City should be sold. Respondent secured an appraisal which valued the property at $17,500 to $18,500. Respondent then arranged a series of “straw man” transactions through which title to the property changed hands several times. The first deed to the property conveyed it to Greg and Patricia Junghans. Greg Junghans was a business associate of respondent and each owned a 50% interest in a corporation known as Midwestern Diversified Investments, Incorporated (MDI). On January 8, 1982, MDI executed a check for $14,200 which was deposited in respondent’s trust account. On that same date a check in the amount of $12,560 drawn on respondent’s trust account was deposited in the account of Maud C. Wright ostensibly as payment for her residence property. $640.00 went to payment of attorney fees and expenses of sale, with $1,000.00 being retained in respondent’s trust account for future expenses. Thereafter title to the property was conveyed by Mr. and Mrs. Junghans to MDI, and subsequently in 1983, the property was conveyed to Donald Bayless. Other than the $14,200 payment, no consideration changed hands in any of these transactions. Bayless then sold the property for $36,500. Of this amount respondent received $29,236.17. The property was appraised by Fletcher Simons, M.A.I., as having a value of $31,000 as of October 1, 1981, the approximate date of the initial deed to Junghans.
The hearing panel concluded, inter alia:
“Respondent’s conduct demonstrates a casual indifference to the Law.
“There is no question that respondent filed a personal injury suit on behalf of his wife without her authorization and probably against her wishes. He then proceeded to settle the suit and caused a facsimile of his wife’s signature to be placed on the release and settlement draft. The settlement proceeds were apparently used for family purposes and Ms. Thompson suffered no loss as a result of the personal injury accident and subsequent settlement.
“Respondent candidly admitted that he caused a facsimile of his wife’s signature to be placed on applications for loans on two life insurance policies owned by Ms. Thompson on respondent’s life. Both applications were submitted after- the separation of respondent and Penelope M. Thompson. Ultimately, respondent reimbursed Ms. Thompson for all but $689.22 of the money which he had obtained from the insurance company.
“Respondent clearly violated an ex parte restraining order issued- in the divorce proceedings instituted by Penelope M. Thompson when he failed to pay to the Clerk of the District Court his 1982 federal income tax refund and when he encumbered his home. Furthermore, the mortgage executed by respondent prior to his divorce was executed by him as a single person, obviously without regard to the position of the lender. . . .
“At best, respondent’s handling of Maud Caroline Wright’s affairs involved the appearance of -impropriety. At worst, respondent arranged to acquire the home of an ailing, elderly client for an amount substantially less than its fair market value, and then directed the resale at a handsome profit.
“The panel unanimously concludes that there is clear and convincing evidence to establish that:
“1. Respondent engaged in conduct prejudicial to the administration of justice and involving deceit, or misrepresentation, which reflects adversely on his fitness to practice law in violation of DR 1-102(A) (4) (5) and (6) in that respondent executed a mortgage as a single person when, in fact, he was married to Penelope M. Thompson; and that he arranged the sale of the property owned by his client, Maud C. Wright, to himself, or a corporation controlled by him, for substantially less than its fair market value.
“2. Respondent violated DR 7-106(A) in that he disregarded a ruling of a tribunal made in the course of divorce proceedings instituted by Penelope M. Thompson.”
It is also obvious that respondent’s handling of his wife’s insurance policies and obtaining loans thereon by the use of facsimile signatures without her knowledge constitutes a serious violation.
We concur in the findings and conclusions of the panel. Respondent’s actions constitute flagrant violations of the Code of Professional Responsibility and ordinary moral principles. In addition to what has been detailed herein, it is clear that on December 17, 1981, respondent directed a letter to the Department of Social Rehabilitation Services in which he stated:
“The proceeds from the $14,200 sale of the house [of Mrs. Wright] went to Harold Henning and Donna Hope [her grandchildren] . . . .”
This statement was made prior to the time any funds had been received by anyone from the sale of Mrs. Wright’s property and was evidently a deliberate falsehood to obtain state benefits for Mrs. Wright. Respondent’s respect and opinion of the law and our justice system was clearly expressed in a letter to his wife’s counsel during divorce negotiations wherein he stated:
“One side line which should make you and your client happy. I will be surrendering my license to practice law at the close of this case but will do so not for the reasons listed in your letter to Waters but after reviewing the Petition, Restraining Order and letters I find that the practice of law is a parasitic endeavor which preys on the misery and misfortune of others. The world can probably due [sic] with one less parasite.”
Such an attitude would appear to reflect far more than the panel’s determination of “a casual indifference to the Law.”
Having determined that respondent has flagrantly violated the Code of Professional Responsibility, a majority of the members of this Court would discipline the respondent by disbarment while a minority would indefinitely suspend the respondent. See K.S.A. 7-106 and 7-111.
IT IS THEREFORE ORDERED that Roger D. Thompson be and he is hereby disbarred from the practice of law in the State of Kansas, the costs of this action are assessed to the respondent, and the Clerk of the appellate courts is directed to strike the name of respondent from the rolls of attorneys admitted to the practice of law in Kansas.
IT IS FURTHER ORDERED that this order of disbarment shall be published in the official Kansas Reports.
IT IS FURTHER ORDERED that respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii).
Effective this 28th day of March, 1986. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one under the workmen’s compensation act. Plaintiff prevailed, and defendant appeals.
The plaintiff, a coal miner, was injured October 20,1925, while in the employ of the defendant, by being struck in the left eye by a piece of slate rock or sulphur. A corneal ulcer resulted, which later left a corneal scar over the greater part of the eye. Arbitration was agreed upon, the arbitrator finding that for all practical purposes the plaintiff had lost the entire vision of the eye and was totally and permanently disabled. On a review before the district court additional testimony was offered by both parties, but was substantially the same as that introduced in the hearing before the arbitrator. The evidence showed and the arbitrator among other things found that in 1918 plaintiff, while working for the Central Coal and Coke Company, was injured in his right eye, suffering at least a partial permanent disability to such eye. The principal point of controversy is whether plaintiff’s former injury should be taken into consideration in the present action in ascertaining the amount of plaintiff’s compensation. The arbitrator found that if the plaintiff had not received the former injury the later one would not have disabled him to such an extent that he could not mine coal. It was found that the plaintiff was paid $1,188 by the Central Coal and Coke Company in 1918 for the injury to his right eye.
The defendant ably and adroitly argues: First, that but for the former injury the latter injury would not have disabled him to such an extent that he could not mine coal, and that, therefore, the award of the arbitrator should not have been more than the amount allowed by the statutes for the loss of an eye ($1,320 in this case), and that the district court erred in refusing to set aside the findings of the arbitrator as being grossly excessive. Second, that if the court should not have reduced the award to $1,320, that under the findings of the arbitrator the plaintiff’s total disability was not caused by his last injury, but was caused by the two combined. Third, that since the arbitrator found that plaintiff could perform some manual labor (even though he could not mine) and there being no findings as to the amount of money he could earn at such labor, the award could not properly have been for more than the minimum of $6 per week for partial permanent disability. And fourth, that in the event the court does not hold that compensation should be reduced to the scheduled amount allowed for the loss of an eye ($1,320), and does not hold that the award of the arbitrator was otherwise grossly excessive, then that plaintiff’s compensation should be reduced at least in the amount of compensation paid him for the injury received in 1918.
The defendant’s various contentions cannot be sustained. The facts disclose the loss of an eye, coupled with a previous disability. The statute applicable makes no provision for an award such as suggested by the defendant. There is no theory under which defendant’s claim can be justified. Plaintiff worked for defendant five and one-half years, during which time he had the full use of his left eye and was earning at least $1,300 per year, or an average of $25 per week. While engaged in and on and about the regular course of his employment plaintiff suffered an injury to his left eye, since which time he has been 'and will continue to be permanently and totally dis abled. He has passed out of the class of self-supporting workers into the class of total dependents. Both the arbitrator and the trial court pronounced plaintiff totally and permanently disabled and allowed him $15 per week for 415 weeks. If the defendant had paid plaintiff the $1,188 for his first injury seven years before, there might be some merit to its contention that it should have credit for this amount before payment for total- disability as a result of his later disability, but we find no justification for its claim when the facts are applied to the statute. Various other questions raised and authorities cited by the parties need not be analyzed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to foreclose a mortgage. It was ■ tried to the court; judgment was rendered for plaintiff; the answering defendants have appealed.
Briefly, the facts disclosed by the record are substantially as follows: John M. Kepner, a resident of San Francisco, was the owner of a.quarter section of land in Morton county. In January, 1920, he received a letter from H. S. Green, an official of the First National Bank of Elkhart, advising that C. L. Weidensaul desired to purchase the land, that he would pay $2,500 for it, $500 in cash, and give five notes for $400 each, one due each year, and secure them by a first mortgage on the property for the balance of the purchase price. Kepner accepted the proposition, sent a deed conveying the land to C. L. Weidensaul, and received in payment a remittance of $500 and the five notes and the mortgage on the land securing them, all purporting to be signed by G. L. Weidensaul, a widower, and the mortgage duly acknowledged. The deed and mortgage were duly recorded. Sometime thereafter a deed was recorded purporting to be executed by C. L. Weidensaul conveying this land to Lawrence M. German and Belle German, his wife, which deed contained a clause by which the grantees assumed and agreed to pay the mortgage above mentioned. No payment having been made to Kepner on the mortgage, in August, 1923, he filed this action to foreclose the mortgage. He made C. L. Weidensaul, Lawrence M. German and Belle German, his wife, and others defendants, asked for a personal judgment against the maker of the mortgage and those who assumed to pay it, and for the foreclosure of the mortgage and the sale of the mortgaged premises. C. L. Weidensaul answered, denied that he had ever purchased the property, denied executing the notes and mortgage, denied executing the deed to Lawrence M. German and wife, alleged that if his name appeared on these instruments they were forgeries, and asked to be relieved of liability on them and to be relieved of cost. Plaintiff filed his reply in which he withdrew his prayer for personal judgment against C. L. Weidensaul and asked simply for the foreclosure of his mortgage. Pending the action C. L. Weidensaul died and the cause was revived against his personal representative and heirs. Three of his heirs, children, answered; a fourth child, L. D. Weidensaul, did not answer. The answer of the heirs was to the same effect as that of C. L. Weidensaul, but in addition they alleged that they were in the actual possession of the real property, and they sought to have their title quieted against the plaintiff and against other parties to the action. Pending the action Lawrence M. German and Belle German, his wife, conveyed their interest in the property to the plaintiff. The action then stood with plaintiff seeking to foreclose his mortgage against the personal representative and heirs of C. L. Weidensaul without asking a personal judgment against them, and the answering defendants seeking to defeat such action on the ground that the notes and mortgages had never been executed by their father, and seeking further to quiet their title. The evidence disclosed that none of the answering defendants was in possession of the land, and their counsel conceded at the trial that they were not entitled, under the evidence, to have their title quieted. On the question whether C. L. Weidensaul had executed the notes and mortgage, the court found for defendants, but held, notwithstanding this, that the plaintiff was entitled to have his mortgage foreclosed, and rendered a decree accordingly.
The answering defendants appeal. Their argument, in substance, is this: The plaintiff owned this land. He could convey it to whom soever he pleased. He did convey it to their father, which placed title in him; that if their father executed no notes or mortgage on the land he did not encumber it, hence these instruments are void and the land belonged to their father clear of encumbrance, and that they have inherited it. The difficulty with this view is that the plaintiff was not attempting to give his land to anyone. . He was selling it for a specified sum on definite terms. Some one, for the purpose of the transaction, used the name C. L. Weidensaul as the purchaser.
In deciding the case, the trial court spoke of the plaintiff’s lien as being a vendor’s lien. Appellants complain of that and point out that in this state there can be no vendor’s lien unless the same is founded on contract (citing Greeno v. Barnard, 18 Kan. 518; Felzien v. Wieck, 118 Kan. 194, 234 Pac. 944), and they argue that if C. L. Weidensaul knew nothing of this transaction, took no part in it, there could be no contract with him. The difficulty with this argument is that some one, using the name C. L. Weidensaul, did in fact make a contract with plaintiff, which contract was represented not only by the correspondence, but by the deed, notes and mortgage. There was a suggestion in the testimony that L. D. Weidensaul, the son of C. L. Weidensaul, who filed no answer here, was in the real-estate business, and that he desired to have this land in shape so that he could resell it, and that through Mr. Smith, of the bank, he handled this deal in the name of his father without his father’s knowledge and consent. But the court makes no finding on this question, and we do not regard it as material. One thing seems clear: Either C. L. Weidensaul was the purchaser of this property or he was not. If, as contended by appellants, he did not purchase the property, knew nothing about it, and did not execute the notes and mortgage, then in fact he never had any interest in it, and the appellants are in no better position than he was. They have no interest in it. In view of all the facts disclosed by the record, including the fact that the answering defendants asked to have their title quieted and thus made the matter of quieting title an issue in the case, the court might very well have made his decree quieting title against the answering defendants, and the court need not have ordered a sale of the property for the purpose of forfeiting or foreclosing the interest of these answering defendants.- But since the answering defendants have no real interest in the property they are in no position to complain of the form of the decree of the court.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to enforce liability for breach of an implied warranty of title to certain government bonds. A demurrer to plaintiff’s petition was sustained on the ground that the statute of limitations had run. The plaintiff appeals.
The facts are substantially these: Certain registered government bonds, which could not be transferred without indorsement, were deposited in the Viola State Bank for safe-keeping. The defendant’s cashier, without authority, placed assignments on the bonds, some in September and some in October, 1920, and sold and delivered them to plaintiff. The plaintiff, for full value, shortly thereafter passed the bonds to other parties. They passed through several hands and were eventually surrendered to the government, where the forgeries were detected, the bonds canceled and new bonds issued in lieu thereof to the true owners, and action brought by the government against its transferor. Each successive transferee notified its transferor to appear and defend the suit by the government. There were three suits, one against the Commerce Trust Company, filed May 29, 1923, in which judgment was rendered February 20, 1924, and on demand was paid by the plaintiff March 28, 1924; another filed October 20, 1922, judgment June 18,1924, and on demand paid by plaintiff July 28, 1924; and another action filed July 20, 1923. In the third action the defendant showed no disposition to appear and defend, and plaintiff having satisfied itself that it had no defense paid the claim on March 28, 1924, without judgment having been rendered.
In the instant case the trial court adopted the theory that plaintiff’s cause of action was complete at the time of the original purchase of the bonds — at the time of the original implied warranty of title, and that the statute of limitations became a defense three years after September and October, 1920, the present action not being filed until September, 1925.
The plaintiff contends that while there may have been a cause of action for nominal damages immediately following its acquisition of the bonds, a new cause of action necessarily became available when the new and ultimate facts came into existence entitling it to reimbursement; that is to say, the defendant’s liability as indemnitor accrued for the first time when plaintiff was compelled to indemnify its own successor in title. Also, that notice to the defendant to defend in the various suits was a substitute for action by plaintiff. The defendant argues that the warranty of title was broken as soon as made; that ignorance of the forgery made no difference; that discovery of the breach was not necessary to start the statute of limitations; that a cause of action accrued immediately upon delivery of the bonds with the forged assignments.
That there was an implied warranty of title appears to be conceded. The doctrine applies to tangible chattels (Paulsen v. Hall, 39 Kan. 365, 18 Pac. 225), and properly applies to choses in action such as bonds. (See Ratcliff v. Paul, 114 Kan. 506, 220 Pac. 279; 9 C. J. 60; 24 R. C. L. 182, 2 Williston on Contracts, 2d ed. § 977.) The question for consideration here is, When does the cause of action for breach of implied warranty of title accrue? A discussion of the subject in 2 Williston on Contracts, § 980, discloses two principal lines of authority. One treats the covenant as one of seizin for which in some instances full damages as well as nominal damages may be recovered at once. The other treats the covenant as. one of quiet enjoyment and denies recovery until possession has been interfered with, with the additional feature that if the buyer does not choose to wait he may tender back the property and recover his money. (See annotation L. R. A. 1916F, 818.) In the present instance plaintiff was a mere conduit of title. Immediately or soon after purchase it sold the bonds for full value. It would seem, therefore, that until the claim for reimbursement arose, the plaintiff was in position to recover no more than nominal damages. In Hammerslough v. Hackett, 48 Kan. 700, 29 Pac. 1079, the grantee by deed of a tract of land sued the grantor on his covenant of seizin on account of an adverse title which was found to be outstanding at the time of the conveyance. It was held that recovery could be for no more than nominal damages on account of the fact that plaintiff, after taking the purported title, parted with it for full value, so that if anyone had suffered actual damages it was his successor in title. It was said in the opinion:
“The covenants of seizin and of right to convey were broken at the time of the execution of the conveyance, and if Hackett had brought her action upon the covenants at once, and tendered a reconveyance of the same to Hammerslough, she would have been entitled to recover the consideration paid, with interest. Instead of availing herself of this opportunity, however, she accepted the deed and the land, and by her act and the operation of law she has transferred the land to others. . . . Since that time there have been several conveyances of the land, and each transfer has been for a substantial consideration. . . . During her ownership there was no adverse possession of the land nor any hostile assertion of paramount title in another. She suffered no actual loss, and the parties who claimed through her, it appears, have not been disturbed in their possession or ownership by any adverse claimant. With a view of recovering substantial damages, she tendered in her reply a reconveyance to Hammerslough, but this was wholly ineffectual, as the title or right to the benefit of the covenants had passed from her and had vested in her assigns. . . . That she is entitled to no more than nominal damages has practically been determined by this court in Scoffins v. Grandstaff, 12 Kan. 467.” (pp. 706, 707, 708.)
If in the instant case plaintiff had sued defendant for breach of warranty of title and tendered back the bonds, recovery could have been had for substantial damages, but when plaintiff sold the bonds to other parties it was for the time being “whole,” and no recovery could have been had except perhaps for nominal damages until the subsequent events which gave rise to a new claim for reimburse ment. (See annotation, 17 L. R. A., n. s., 1178, 1185.) This principle was affirmed in O’Meara v. McDaniel, 49 Kan. 685, 31 Pac. 303, and in Loomis v. Loughry, 109 Kan. 445, 199 Pac. 470, while a contrary position appears to have been taken in Bolinger v. Brake, 57 Kan. 663, 47 Pac. 537. The Hammerslough case was approved. It was said in the opinion:
“Perhaps it may be said where the title has been cured by adverse possession and the lapse of time, by estoppel, or otherwise, without cost or expense to the grantee, his recovery for a breach of the covenant or seizin should be limited to nominal damages. It may not be going too far to say that in any case where there has been a breach of this covenant, but the title has been healed, or all danger of its hostile assertion has passed away, or the covenantee has lost nothing and is in danger of no loss or liability, no more than nominal dmages are recoverable. The ease of Hammerslough v. Hackett, 48 Kan. 700, comes within the principle last mentioned.” (p. 668.)
We think the ordinary rule of indemnitor and indemnitee should apply; that the cause of action accrued only when the indemnitee suffered damage, and that the defendant’s liability as indemnitor accrued when the plaintiff was compelled to indemnify its own successor in title. For a discussion of accrual of claims, liability over, etc., see Leslie v. Compton, 103 Kan. 92, 172 Pac. 1015. The question of when the statute of limitations commenced to run on the right of contribution between sureties was considered in the case of Mentzer v. Burlingame, 78 Kan. 219, 97 Pac. 371, wherein the court said:
“The statute did not begin to run until the cause of action for contribution accrued, and that was when the surety satisfied the debt. The action was not upon the note nor upon the judgment, but upon the implied promise for contribution. (Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Zuellig v. Hemerlie et al., 60 Ohio St. 27, 53 N. E. 447, 71 Am. St. Rep. 707.) A surety’s right of action for contribution from a cosurety accrues at the time he pays the debt. The statute of limitations does not begin to run against his right until such payment. (Lowenthal v. Coonan, 135 Cal. 381, 67 Pac. 324; . . . see, also, extended note to Scott v. Nichols, 27 Miss. 94, in 61 Am. Dec. 504-508.)” (pp. 220, 221.)
The defendant relies principally on Rucker v. Hagar et al., 117 Kan. 76, 230 Pac. 70. The facts and principles there applied are not applicable here. There the holder of a promissory note sued the person from whom he had purchased by delivery, upon the implied warranty of title contained in R. S. 52-606 (negotiable instruments act), claiming that the indorsement on the note was forged. More than five years had elapsed after the purchase, during which time the plaintiff was in possession of the note. It was held that his cause of action had existed from the date of the purchase and so was barred by limitation. Here the plaintiff disposed of the instruments in question for full value soon or immediately after purchase. It was a mere conduit of title. Conceivably, there might have been an action for and recovery of nominal damages based upon the original warranty when the bonds had been passed on to subsequent purchasers. In harmony, however, with the authorities cited, we think a new.suit became available to plaintiff when the ultimate facts came into existence entitling it to reimbursement. The claim was not capable of being presented and litigated until that time.
After the forgery had been established beyond a doubt in .the first two actions, it was not necessary in our opinion for the third action to go to judgment. There was no longer any question of plaintiff’s liability to its transferee and it was justified in paying the claim and proceeding against its transferor.
The judgment is reversed and the cause remanded with instructions to overrule the demurrer. | [
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The opinion of the court was delivered by
Harvey, J.:
In this case a physician sued to recover $50 on an account for professional services in treating defendant’s minor son. Defendant answered, denying liability and alleging he was damaged in the sum of $117.98 by plaintiff’s malpractice. The jury returned a verdict for defendant for $69.40. Plaintiff has appealed. Defendant moved to dismiss the appeal for the reason that the judgment is less than $100. (R. S. 60-3303.) But plaintiff has involved in the controversy the sum he sought to recover, plus the judgment against him. The amount of this exceeds $100. (Hopkinson v. Conley, 75 Kan. 65, 69, 88 Pac, 549.) The motion to dismiss is denied.
Plaintiff contends that his demurrer to defendant’s evidence in support of his claim for damages should have been sustained for the reason, (1) that it proved no negligence of plaintiff, and (2) if such negligence was shown, the damages sought to be proved were not the proximate result of such negligence. We think the second point is well taken and requires a reversal; it is not necessary, therefore, to determine the first.
The facts, substantially, are: ‘Defendant’s son, about nine years of age, was thrown from a horse and his arm was severely injured at the elbow, which was dislocated. He was taken to the office of plaintiff, a physician and surgeon, who had an X-ray machine in his office. Plaintiff examined the injury, set the elbow and bandaged it with splints, and the boy was taken home. He either saw the boy, or talked with one of his parents, each day for several days, when he concluded he ought to take an X-ray of the elbow, and the boy was taken to his office for that purpose. The first pictures did not develop well, and others were taken the next day. They showed there was something holding the joint open. Plaintiff was satisfied that there was a piece of the olecranon process back in the joint holding the bones apart. When plaintiff discovered' that condition, he advised that the boy be taken to a hospital where he could be better treated than plaintiff was equipped to treat him. The parents took the boy to a hospital, where he was treated and a good recovery obtained. The damages proved were the expense of going to the hospital — car fare, hotel bills, the expense at the hospital, the surgeon’s fee there, and the time of the boy’s father in going with him. The negligence relied upon, and which the jury found in answer to special questions, was that plaintiff did not use his X-ray to determine the extent of the injury at, we presume, the first treatment, instead of several days later. Well, let us assume, without deciding, that this was negligence. How would that have reduced the expense of going to the hospital? There is no contention that plaintiff was negligent in advising that the boy be taken to the hospital. The evidence of the hospital surgeon is that the injury was no more difficult to treat at the hospital by reason of the fact that the patient did not reach the hospital until about ten days after the injury. Had plaintiff used the X-ray at the first treatment, and discovered then, as he did discover when he used it, that he was not equipped to treat it because of lack of proper facilities, and had advised that the patient be taken to the hospital, and had this been done, the car fare, time and other expenses would have been the same. Hence, the conclusion seems irresistible that the damages sought to be proved were not caused by the negligence of plaintiff in failing to use the X-ray earlier, if that was in fact negligence.
The judgment of the court below will be reversed, with directions to sustain plaintiff’s demurrer to defendant’s evidence in support of his claim for damages. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff asked for a judgment against the defendant enjoining her from bringing and prosecuting an action in the state of Missouri to establish her claimed dower rights in the Missouri real property which had belonged to her deceased husband; asked for a temporary injunction; and asked that there be embraced within the temporary injunction an order directing that the defendant execute such papers and instruments as may be required by the laws of Missouri to accomplish the waiver and renunciation of all her rights, titles, interests and dower in such real property; that such instruments be deposited with the clerk of the court, and that, on the final determination of the action, they be delivered to the plaintiff for Roderick Leach Fischer and Eleanor Ann Fischer. A temporary injunction was issued, the instruments were ordered executed and deposited with the clerk, and judgment was rendered in favor of the plaintiff according to the prayer of the petition. The defendant appeals.
The defendant and Louis B. Leach entered into an antenuptial marriage contract on June 26, 1911, and were married immediately thereafter. They separated in November, 1925, and in December of that year the defendant commenced an action against Louis B. Leach for a divorce and for alimony. While that action was pending, but before judgment was rendered, the defendant and Louis B. Leach entered into a signed and acknowledged written contract by which the rights of each in the property of the other were adjusted, and by which Louis B. Leach agreed to pay to the defendant $27,500 alimony. After the separation contract was signed, the defendant amended her petition by striking out the prayer for divorce, leaving the prayer for alimony. Both parties asked for judgment in accordance with the separation contract. Judgment was so rendered. Louis B. Leach subsequently died. The defendant set up a claim of dower in the real property situated in Missouri.
Roderick Leach Fischer and Eleanor Ann Fischer are the grandchildren of Louis B. Leach and his only living descendants. Their guardian, Floyd E. Fischer, prosecutes this action, which was commenced July 10, 1926. A restraining order issued at that time was served on the defendant. On July 23, 1926, on the application of the plaintiff, the court ordered the defendant to—
“Execute and deliver an instrument of writing remising, releasing and forever quitclaiming unto said minors all of the real estate described in the petition herein, to have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto - belonging, and unto their heirs and assigns forever, so that neither the said Minnie H. Leach nor her heirs, nor any other person, or persons, for her or in her name or behalf shall or will hereinafter claim or demand any right or title to said real estate or any part thereof, but that they and each of them shall by such instrument and indenture be excluded and forever barred . . . that upon the proper execution and acknowledgment of said instruments of writing that-they be deposited with the clerk of this court to abide the further orders of the court in this cause.”
The defendant, after being ordered so to do by the court, and after objection, executed an assignment, transfer, and relinquishment to the plaintiff of all her right to the personal property owned by Louis B. Leach at the time of his death, and executed a deed conveying to Roderick Leach Fischer and Eleanor Ann Fischer the real property in Missouri owned by Louis B. Leach at the time of his death. Both instruments were deposited with the clerk of the court.
The antenuptial contract provided in substance that the property of each of the parties thereto should be and remain forever the property of the party then owning it; that each would sign all papers with the other which were necessary for the transfer of any property when sold; and that each should control his property and do with it whatsoever he wished, the same as he could or would if no marriage relation existed between them. The separation agreement .provided in substance that the defendant and Louis B. Leach should hold their property free and clear from the demands of each other, and barred each from any interest inheritable or otherwise in the property of the other. The judgment in the action for alimony recited that—
“The plaintiff is forever barred from setting up any right, title or estate whatsoever in and to said real estate and personal property, whether now owned by the defendant, or hereafter acquired by him, and from all rights of inheritance, and/or dower therein.”
In the present action the court made extensive findings of fact and conclusions of law. The findings embraced the facts above set out. Those findings of fact, the conclusions of law thereon, the antenuptial contract, the separation agreement, and the judgment in the action for alimony are such that it is difficult to make a correct condensed statement of them so as to give their true meaning and effect. For that reason, omitting the descriptions of property, they are attached as an appendix to this opinion and made a part of it.
1. The defendant contends that she has not waived her dower interest in the Missouri real estate of her deceased husband. So far as this action is concerned, dower may be defined as “the provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.” (1 Bouvier 932.) Until the death of her husband, the defendant’s right of dower was inchoate. Concerning the inchoate right of dower, 19 C. J. 493 says:
“The inchoate right of dower is neither a title, nor an estate in land, nor a lien upon the husband’s land, nor a personal claim against the husband. It confers upon the wife no right of possession or control of the land to which it attaches. Some decisions deny that it is even an interest in land, and describe it as a mere possibility of a future interest. But generally the inchoate right of dower is regarded as a subsisting, separate, and distinct interest, of such a nature that the wife may maintain a separate action for its protection, and which attaches as soon as there is a concurrence of marriage and seizin.”
The right of dower can be released, relinquished, waived or conveyed.
The defendant in her answer pleads section 315 of the Revised Statutes of Missouri of 1919, as follows:
“Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate in inheritance at any time during the marriage to which she shall not have relinquished her right of dower in the manner prescribed by law to hold and enjoy during her natural life.”
She also pleads section 2175 of the Revised Statutes of Missouri of 1919, as follows:
“A husband and wife may convey the real estate of the wife and a wife may relinquish her dower in the real estate of her husband by their joint deed acknowledged and certified as herein provided.”
She argues that neither the antenuptial contract, nor the separation agreement, nor the judgment of the district court in the alimony case, conform to the statutes of Missouri concerning relinquishment of dower. By both the antenuptial contract and the separation agreement the defendant attempted to release, waive and relinquish every right which she then had or thereafter might obtain in her husband’s property. Those agreements, although neither specifically named dower, were comprehensive enough to include that interest of the defendant in the property of her husband. When the judgment in the action for alimony was rendered at her request in accordance with the separation agreement, she, through her counsel, in open court expressly consented that the judgment should bar her dower right to the property in Missouri. A judgment entered in that manner is a most solemn form of contract.
In 19 C. J. 499 it is said:
“If in an action to which the wife is a party facts are alleged as a bar to the wife’s right of dower, the judgment therein based upon such facts precludes a subsequent assertion of her rights; but it is otherwise if the wife’s right of dower is not in issue in the action; and as a rule she will not be precluded by judgments in actions to which she is not a party.”
By the antenuptial contract, the separation agreement and the judgment rendered in the action for alimony, the defendant waived all of her dower rights to the Missouri lands of her husband.
2. Another contention of the defendant is that the judgment in the action for alimony could not have any effect outside of the state of Kansas, and for that reason could not deprive the defendant of her dower rights in the state of Missouri. It may be conceded that the judgment cannot have any effect on the title to real property outside of the state of Kansas, but it has full effect in this state. The defendant and her husband lived in Kansas at the time the judgment was rendered. The district court of Lyon county then had jurisdiction of both of them. They were in court, the defendant in person and by counsel. The court had jurisdiction to render judgment settling all rights of each of them in the property of the other.
In Meador v. Manlove, 97 Kan. 706, 156 Pac. 731, this court said:
“Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal title to land in another state, it may render a judgment to impress a trust as to such land and order the trustees to execute a conveyance thereof; and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction.”
In Caldwell v. Newton, 99 Kan. 846, 848, 163 Pac. 163, this court said:
“It is well settled that actions involving title and possession of real property are local in character and can be tried only in the state wherein the land lies, but it is equally well settled that, jurisdiction having been acquired, equitable relief may be afforded without regard to the location of the subject matter where it is enforceable against the person of the defendant.”
This is not a new principle; it has often been applied. See, also, Zane v. Vawter, 102 Kan. 887, 172 Pac. 37, and the cases cited in Caldwell v. Newton, 99 Kan. 846, 848,163 Pac. 163.
3. The defendant contends that the judgment in the divorce action barring her dower rights was outside the issues presented by the pleadings in that case, and for that reason is void. In that action the petition was an ordinary one for divorce and alimony; the petition was amended by striking out the prayer for divorce. That did not change the issues so far as the property of the plaintiff and the defendant in that action was concerned. Judgment was rendered on the pleadings under the separation agreement and effectively bound the parties thereto. . The judgment is not void.
4. The defendant argues that compelling her to execute the assignment and relinquishment of her rights to the personal'property of her deceased husband and in compelling her to execute the deed conveying to Roderick Leach Fischer and Eleanor Ann Fischer all her rights and interest in and to the land in Missouri impairs the obligation of the separation agreement in violation of section 10 of article 1 of the constitution of the United States, deprives her of her property without due process of law in violation of the fourteenth amendment of the constitution of the United States, and deprives her of the right to go into the courts of Missouri, in violation of clause 1 of section 2 of article 4 of the constitution of the United States.
We quote from the headnotes to Selover-Bates & Co. v. Walsh, 226 U. S. 112, as follows:
“With the ruling of the state court as to the applicability of a state statute to a particular contract this court has nothing to do. It is concerned only with the question of whether as so applied the law violates the federal constitution.
“The court may, through action upon, or constraint of, the person within its jurisdiction, affect property in other states.
“The obligation of a contract is the law under which it was made, even though it may affect lands in another state; and in an action which does - not affect the land itself but which is strictly personal, the law of the state where the contract is made gives the right and measure of recovery.”
In Caldwell v. Newton, 99 Kan. 846, 848, 163 Pac. 163, this court quoted from Massie v. Watts, 10 U. S. 148, as follows:
“ ‘Where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstances, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.’ (p. 158.)”
A host of authorities might be cited to support this rule.
The propositions discussed dispose of all the questions presented by the defendant, although those questions are presented in a number of different ways under as many different heads.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Huie Reaves was an employee of Swift & Company. He was accidentally injured in the course of his employment by stepping into a brine sewer, while carrying a load of lumber on his shoulder, which it is alleged resulted in wrenching and bruising his right knee and leg and that they were contaminated and infected by the brine and sewage, causing synovitis, with a limitation of the motion of the knee and leg and a permanent crippling of the same. He claimed compensation for the injury at the rate of $6 per week, and gave defendant notice of his claim with the request for arbitration of'the claim. Consent was not given, and the present action was brought.
The defendant answered that it had paid to plaintiff $12.24, which Reaves had accepted in full satisfaction in discharge of the claim in respect to the injuries received, and that the release given by plaintiff had been filed in the office of the clerk of the district court as the law provides. Plaintiff’s reply was that when he received the payment he was told that it was a mere receipt for the time that had elapsed since his injury, and that he signed it relying upon the truthfulness of the statement. He further replied that he was given treatment by the defendant for his injuries from the time he received them up to the day he was paid $12.24; that after several visits the pain had subsided in his knee, and he was advised by those in charge of the medical department that his leg had healed so that he might go back to work; that he believed the statements and undertook to go back to work, and then signed the receipt mentioned, but found that he, as well as the medical department, was mistaken, as it turned out that his wound had not healed, that it thereafter gave him much pain and trouble, and he was compelled to suspend labor for a long time. He added that he is an uneducated man and did not understand the compensation law nor the nature of the document put forth for him to sign, but understood that the nurse who had treated his leg and had made it feel better told him to return to work and sign the papers. He was also told he could not go to work until he gave them a receipt for the compensation, which was explained to him as the compensation for the time he had been off duty.
The plaintiff introduced his testimony, and at the close thereof the defendant filed a demurrer to the testimony claiming that it was not sufficient to establish a cause of action against defendant. The demurrer was overruled, and the defendant then offered no evidence, but rested its case.
After instructions were given, the jury found that plaintiff was entitled to compensation, and also found that he had been wholly incapacitated by reason of the injury for two weeks, and partially disabled from performing work and labor as a result of the injury up to the time of the trial, seventy-nine weeks, and.that he will be partially incapacitated during his natural life.
The evidence shows that when plaintiff stepped into the sewer with a load on his shoulder, his leg was skinned and bruised and his knee joint twisted and injured. After working a short time the foreman sent him to a company doctor, wlm turned him over to a nurse in the office, designated as the “lady doctor,” with the direction to “tie it up.” Two or three days later the doctor examined the leg, and advised plaintiff to stay at home for eight or nine days. During that period he visited the doctor’s office about twice a week and was treated by the lady doctor. At the end of about two weeks the lady doctor expressed the opinion that he was able to go to work. He called her attention to the fact that his knee was still swollen, but she said she thought it would grow better when it was put in action, and that he would be able to work on the following Monday. He returned to the plant on Monday and went to the doctor’s office to get a slip allowing him to resume work. When he did so, the doctor said, “Who told this man to go to work?” and the lady doctor said, “I did”; and then the doctor gave him a slip of paper to present to the foreman. He was told to go to the office and get his money, and there those in charge wrote a check for $12.24, and caused him to sign a paper which was in the form of a release, and stated .that it was accepted “in full satisfaction and discharge of all claims accrued or to accrue in respect to all injuries or injurious results, direct or indirect, which have arisen or which may arise from an accident sustained by me on or about the 26th day of May, 1925, while’in the employ of the said Swift & Company.” Signed, “Huie Reaves.” Following this was the statement, “I read this.” The plaintiff stated that he did not read the paper, and they did not tell bim that it was a release. While he worked for some time after-wards, the knee became swollen and continued to grow worse, until he was disabled and had to quit work for defendant. As to the injury and condition of the leg, a physician testified that he found a scar along his shin bone and extending up towards his knee, and among other things said that the knee was swollen and there was a thickening about the joint, that he was unable to bend the knee beyond one-third of the normal range, and that upon examination the hamstring tendons were found to be under tension and affected with what is called synovitis of the knee. He stated that the plain tiff is incapacitated fifty per cent, and that in his opinion it is a permanent partial disability. Two other physicians gave testimony of like import as to the condition of the leg and the extent of the disability. The injury and disability found by the jury are well supported by the testimony.
It is contended that there was no fraud in procuring the release on the payment of the $12.24, and that a mutual mistake was not sufficiently shown. In' view of the na'ture of the injury the payment of $12.24 was a mere bagatelle. It argues strongly that the medical department of the defendant, as well as the plaintiff, was mistaken in their judgment as to the extent of the injuries. Their statements show that only slight attention was given to the injured joint, and assuming that they were acting in good faith, as we may assume, they were obviously mistaken when they told the plaintiff the knee, although swollen, would grow better with use and that he was fit for work. The pain had abated to some extent, and the plaintiff relied on their statements, accepted their judgment and undertook to carry on. It is clear that plaintiff was also mistaken as to the extent of the injury. One of the physicians explained that after an injury to a joint, there is first an acute condition which will pass and the injured person may think he is getting well, but pretty soon it passes into a chronic condition with a thickening of the synovial membrane and joint structures, and this is followed by limitation of motion. He said that “after a time the fever subsides and the thing becomes chronic, the temperature drops away, and you think they are well. You send them back to work and in two or three days the knee is all swollen up and painful again. A condition such as he has now can come on so gradually with the thickening up of the structures in the knee, and within a year or two’s time you get a practical locking of the knee so you do not get any motion.” This may explain the fact that the plaintiff as well as the medical department may have mistaken the condition and thought that he was recovering.
The conditions found here were somewhat like those considered in Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293, where the question of mutual mistake was involved. The injury there caused inflammation of the elbow joint, called synovitis, and after a time the injured employee returned to work. The doctor thought and told him that he would be all right in a few days, and then a release was given which the employee thought was a receipt for accrued wages. The amount paid turned out to be grossly inadequate for the injury sustained. The evidence as to the extent of the injury was, as here, uncontradicted and tended to show that all parties had misunderstood the nature and extent of the injury. The court said:
“It is next argued that there was no evidence of mutual mistake as to the extent of plaintiff’s injury at the time he executed the release for $22. Plaintiff testified that he did not even understand he was executing a release at all; he thought he was giving a receipt for wages. It was also shown that he did not know he was seriously injured. Indeed, a few days after he was injured he returned to his job and tried to use his arm, and not for some time did he know the extent of his injury. He depended on what the defendant’s doctor told him, ‘that he was all right, he can go back to work,’ and so, apparently, did the defendant’s claim agent who settled with plaintiff, if indeed there was any such settlement as pleaded by defendant. . . . The evidence makes it clear that plaintiff, defendant’s doctor, and defendant’s claim agent, all three, assumed and believed that plaintiff’s injuries were not serious. It transpired in.time, however, that the injury was both serious and permanent, that it was a case of chronic inflammation of the synovial membrane of the elbow joint.” (pp. 128, 129.)
After setting forth the testimony as to the condition of the elbow resulting from the injury, it was added:
“In view of these facts, it is quite clear that if sincerity of conduct and purpose be attributed to the defendant’s doctor and the claim agent, as well as to plaintiff, there was a mutual mistake in the settlement and release for a grossly inadequate consideration.” (p. 129.)
Assuming that those of the medical department who advised the plaintiff that his knee was all right and that he could return to work the following Monday, upon which advice he depended, were acting in good faith, it is manifest from the uncontradicted testimony of the witnesses as to the extent of the injury that defendant, as well as plaintiff, was mistaken. It is inconceivable that they would have told him he was able to go to work, which involved the carrying of heavy loads of meat from the plant to the refrigerating cars, if they had known the character of the injury. The testimony of the doctors who treated and advised him was not taken, as the defendant rested its case on the testimony of the plaintiff. That testimony, we think, shows that the mistake was mutual and the release without effect.
Upon the evidence he was clearly entitled to compensation, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In the main, these cases depend on similar facts. The actions are to cancel oil and gas leases and to collect damages and attorney’s fees. In each, judgment was rendered in favor of the defendants; and in each, the plaintiff appeals.
The plaintiff owned a large quantity of land in Cowley county. On June 3,1921, he entered into a written contract with the Wichita Natural Gas Company. That contract contained the following provisions:
“The vendor agrees to sell and deliver to the vendee, and the vendee agrees to purchase and receive from the vendor, at the mouth of the well or wells now or hereafter drilled on the above-described land ... all of the merchantable natural gas as it comes from the wells now or hereafter drilled upon said land during the life of the said leases or any renewal thereof, and as long as gas shall be produced in paying quantities therefrom.
“It is agreed that when the production of gas from the lands covered hereby so decreases that the vendee is unable to take therefrom an average of 50,000 cubic feet of gas per day during the period from November 1 in any year to-April 1, next thereafter, then either party hereto may terminate this contract by giving the other party notice in writing of its election so to terminate the-same, which notice shall designate the date on which said contract shall terminate, which shall be not less than thirty (30) days from the date of said! notice, after which no further liability shall accrue to or in favor of either of said parties. . . .
“All the promises, covenants and agreements hereof shall bind and run in favor of the respective parties, their heirs, executors, administrators, successors and assigns. . . .
“The vendee agrees . . . that vendee shall not be required to take more gas under this contract than the well or wells at present developed or to be developed hereafter are capable of delivering against the vaiying pressure of the gas in the lines of the vendee . . .”
Afterward, on February 15, 1922, the plaintiff executed oil and gas leases on part of the land in favor of A. J. Fowler, R. H. Edgerly, and J. S. Lucas. Those leases contained the following provisions:
“If no well be commenced on said land on or before the 15th day of February, 1923, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s . . . the sum of one dollar per acre, which shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said date. In like manner and upon like payment or tenders the commencement of a well may be further deferred for like period of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred. . . .
“This lease is subject to a contract of purchase of the gas by the Wichita Natural Gas Company.”
A part of those leases was assigned to defendant I. S'. Woodward and a part to defendant R. P. Ralston.
In 1923, wells were drilled by the defendants on the land covered by the leases. Until in April, 1925, gas was produced by both defendants and sold to the Empire Natural Gas Company, which had succeeded to the rights of the Wichita Natural Gas Company, when the gas from the wells was cut off from the pipe lines of the Empire Natural Gas Company because the pressure in those lines was so great that gas from the wells could not flow into the pipe lines. No rents were thereafter paid. Shortly after the Empire Natural Gas Company ceased to take gas from the wells, the plaintiff demanded of the defendants R. P. Ralston and I. S. Woodward that each release the oil and gas lease held by him. A release was executed by R. P. Ralston, but was never delivered to the plaintiff nor filed for record. It does not appear that any release was signed by defendant I. S. Woodward.
The cases turn on the effect to be given to the quoted clause of the leases. By the contract with the Wichita Natural Gas Company, the plaintiff contracted to sell all the gas produced on the lands in controversy to that company. The gas and oil leases were executed after that contract had been signed, and by its terms the lessees and their assignees were notified of the_ existence of that contract, submitted to it, agreed to it, and were bound by it. Under the contract, all the gas produced on the leased premises must be sold to the Empire Natural Gas Company unless the contract of the Empire Natural Gas Company should be canceled in themianner provided for in that contract. The plaintiff had the right to cancel it. Probably, each of the defendants had the same right as to the land controlled by him. Concede that he had such right. Neither the plaintiff nor either of the defendants were compelled to procure a cancellation of the contract. If the plaintiff desired that the gas be sold to some person other than the Empire Natural Gas Company, he should have prpcured a cancellation of the contract. The plaintiff, .until he has secured a cancellation of the contract with the Empire Natural Gas Company, cannot compel a cancellation of the leases held by the defendants. These cases are not like Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563.
The judgments are affirmed. | [
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The opinion of the court was delivered by
Burgh, J.;
The action was one for damages for death of a six-year-old child who was drowned in the swimming pool in Ripley park, a public park in the city of Topeka. A demurrer was sustained to the petition, and plaintiffs appeal.
The swimming pool was an artificial pool constructed of cement. It had a sloping bottom which provided varying depths of water, and was equipped with a diving platform, springboards, a bathhouse, and other swimming-pool accessories. While attending a Sunday-school picnic in the park the child went into the pool, got beyond his depth and was drowned. No life guard was on duty at the time. Plaintiffs stand on the proposition that the swimming pool with its equipment and appurtenances was a nuisance attractive to children, and consequently that the city may not avoid liability by invoking the doctrine of exercise of governmental power in maintaining the swimming pool.
The swimming pool was doubtless attractive to children, but it was not a nuisance, producing public annoyance, inconvenience, discomfort or hurt. It was a feature of the park tending to promote public health, happiness and welfare. The accident to plaintiffs’ child was a misfortune greatly to be deplored, but it did not change the essential nature of the place.
In the case of Peters v. Bowman, 115 Cal. 345, a city erected an embankment which caused a pond to form on a vacant lot, in which a boy was drowned. It was held the lot owner was not liable for maintaining an attractive nuisance. The facts in the Peters case were essentially similar to the facts in .the case of Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185. In the opinion in the Tavis case (p. 553) a quotation was made from the opinion in the Peters case., In the case of Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, a boy seven years old broke through the ice on an artificial pond in a public park of the city and was drowned. It was held the city was not liable for maintaining an attractive nuisance. In the opinion, the quotation from the opinion in the Peters case appearing in the opinion in the Tavis case, was reprinted, (p. 14.) Plaintiffs seize upon the two sentences concluding the quotation from the opinion in the Peters case, making a distinction between common dangers existing in the order of nature, and novel dangers specially created by act of an owner, and argue the concrete swimming pool belongs in the latter class, and constituted an attractive nuisance.. The sentences referred to do not conclude what the court said in the opinion in the Peters case, and what the court had in mind'when speaking of novel dangers specially created is revealed by what follows:
“And such is the rule of the turntable cases, of the lumber-pile cases, and others of a similar character.” (Peters v. Bowman, 115 Cal. 345, 356.)
A swimming pool forming one of the public attractions in a city park does not belong in the same class with the places regarded as attractive nuisances within the rule of the turntable cases, as that rule is applied by this court. (See Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53, and cases cited, pp. 25 and 26.)
The judgment of the district court is affirmed. | [
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The opinion of the eourt was delivered by
Hutchison, J.:
The Farmers State Bank, of Wichita, appeals to this court from a judgment rendered against it in the district court of Sedgwick county for $750 in favor of the plaintiff, Joe Meinhart, for damages sustained on account of injury to his credit because of the failure and refusal of the bank to honor his checks drawn thereon when he had in said bank funds sufficient to cover such checks at the time they were drawn and presented. This case has been to this •court before and was reversed and remanded, the syllabus being as follows:
“In an action by a depositor to recover damages from a bank for refusal to honor his checks, the court permitted the plaintiff to introduce evidence that he had been refused loans by other banks and that others had refused to cash his checks, without showing that the refusal of the other banks to make the loans and others to cash his checks was caused or influenced by the dishonor of the checks by the bank from which he sought damages. Held, error.” (Meinhart v. Farmers State Bank, 119 Kan. 321, 239 Pac. 769.)
On the second trial of the case the evidence is said to have been substantially the same as in the former trial, with the exception of proof being offered and introduced to the effect that credit was refused because the defendant had refused to honor plaintiff’s checks.
The plaintiff was a truck farmer operating an eighty-acre farm near Wichita, and had for many years maintained a small account at the defendant bank. On January 2, 1923, he borrowed $200 from said bank and gave his note therefor, due on July 1, 1923, and deposited said $200 to his account in said bank. Thereafter, from time to time he issued his checks thereon, several of which were dishonored and not'paid by said bank. He therefore brought this action against the bank, alleging damages in the sum of $5,000. Originally, his petition contained specific items of damage — protest fees and failure to consummate purchases and carry out business plans because of checks being dishonored — but during the progress of the trial these specific items were on motion of the defendant stricken out of the petition and no evidence was introduced as to any of them. The defendant answered by general denial, admitting its organization and that the plaintiff had an account with it, and alleged that at the time the loan of $200 was made to him he represented that he was needing the money for the purpose of conducting his farm work on the farm he had rented in the county and where he expected to put in spring crops; that shortly thereafter the officers of the bank learned that he had not rented such farm, but was selling his personal property except his household goods and was planning to leave the county; that the president of the bank insisted upon his paying the note or securing it if he were going to leave the county. He brought in to the bank the proceeds of his auction sale, amounting to more than $300, and deposited the same in the bank, and said he would try to get his father-in-law to sign his note as security. The answer alleges that on February 27, 1923, after the refusal of the father-in-law to sign the note, the bank credited $200 of plaintiff’s deposit on the note, which paid it in full, and credited a rebate of unearned interest amounting to $5.48, which left a balance in his account of $7.11. The bank further alleges in its answer that it honored several small checks after that date until the balance was exhausted and then dishonored all checks coming after that. This action was brought on May 23,1923. It was tried to a jury with the result above stated, and additional findings were made by the jury to the effect that none of the damages awarded were given as exemplary damages. Motion for a new trial was overruled, and our attention is directed by the defendant to many points where error is claimed to have been committed in the proceedings.
It is contended that the court erred in excluding the testimony of the president of the bank giving the conversation between him and the plaintiff and the representations made by the plaintiff at the time the loan was made and the note given. Whether this conversation and the representations of the plaintiff would, strictly speaking, come under the rule to be excluded because of tending to contradict or vary the terms of a written instrument need not here be decided because the president related it in giving the conversation at the plaintiff’s home after the sale when urging the plaintiff to secure or pay the note and reminding the plaintiff of how the loan was procured, and the plaintiff specifically denied there was any such reference by the president in such conversation at his home, the alleged conversation in this way reaching the jury just the same. An examination of the many cases cited in this connection shows that in practically all of them the representations made to secure the loan were made in writing. There was certainly no error in refusing to let the bank president relate his conversation with the plaintiff’s father-in-law in the absence of the plaintiff.
Defendant complains of the court admitting incompetent, irrelevant and immaterial testimony, particularly that of R. D. McKay, engaged in the automobile business, who told of having sold Mr. Meinhart an automobile and having taken a check on defendant-bank for $60 which was returned to him dishonored. The following are some of the questions and answer in this connection:
“Q. What did you do when you got in touch with him, Mr. McKay? A. I insisted that Mr. Meinhart pay the check and he and I went over to the bank to see why it wasn’t paid because he told me he had the money in the bank.
“Q. Will you state the substance of the conversation? A. I asked Mr. Limbocker [bank officer] why he wouldn’t pay the check, when Mr. Meinhart told me the money was there in the bank to be paid with, and Mr. Limbocker said he didn’t have any money in the bank and I turned around and asked Mr. Meinhart and he said he did have it there. I asked Mr. Limbocker why he wouldn’t pay the check, and he says, 'Mr. Meinhart can tell you why.’ Very curt about it.
“Q. Did you have any further business with him? A. Took his automobile away from him.
“Q. Now, after the check was dishonored, did Mr. Meinhart have any credit with your concern? A. He had no credit with us.
“Q. Why not? A. Because his check was turned down, of course.
“Q. After the check was dishonored did Mr. Meinhart attempt to get you to extend further credit? A. Yes.
“Q. Did you extend such credit to him. A. No.”
This was the line of testimony that was given by the plaintiff because of the decision of this court in the former review of the case. It was apparently given to meet the requirement by showing an injury because of the loss of credit, and we think it was competent .for that purpose.
Defendant urges that plaintiff is estopped to claim damages, because he has ratified the action of the bank by accepting and checking out the $5.48 of unearned interest returned to his account, has accepted the benefit of the payment of the note, and has not commenced an action to recover the $200 appropriated by the bank from his account. The theory of the plaintiff was that he was checking against his balance on deposit in the bank, including the $200 misappropriated as he claimed, and one would hardly under such circumstances consider the payment and return of the note an acceptance of a benefit which would estop him from objecting thereto. True, he could have brought an action against the bank simply to recover the $200 claimed to have been misappropriated— in other words, could have had an action on contract — but none of the cases cited indicates any requirement to do so before suing for damage. The four Kansas cases cited in this connection are where plaintiff has ratified the contract by accepting and retaining some of the fruit or benefits of the deal. The courts will not tolerate any such inconsistent course. But there is no such inconsistency here and hence no estoppel.
“A depositor, suing a bank on an implied contract for its wrongful refusal to pay checks, when he had on deposit funds to meet them, may recover damage for injury to his credit.” (Levine v. State Bank, 141 N. Y. S. 596, syl. ¶ 3.)
“A bank is liable in damages resulting from a nonfulfillment of its contract to pay the money of its depositor upon demand to the same extent and for the same reason that other persons are liable for the nonfulfillment of contracts. The measure of its liability depends on the circumstances of each individual case. A petition, therefore, which states that a bank, in which the plaintiff had money on deposit, neglected or refused to honor his check. or pay it upon demand, states a cause of action.” (Kleopfer v. Bank, 65 Kan. 774, syl., 70 Pac. 880.)
“In addition to the right to recover his deposit in case of refusal of the bank to pay, the depositor may also sue in tort for the injury resulting from such refusal.” (7 C. J. 696.)
It is contended that the bank had a perfect right to appropriate the money of the plaintiff on deposit with it to pay the note not then due, because the plaintiff was insolvent at the time of such appropriation. It was held in the case of Docking v. Commercial National Bank, 118 Kan. 566, 235 Pac. 1044, that “a bank may set off as against the deposit account of an insolvent depositor matured and unmatured obligations of the depositor to the bank held by the bank at the time of insolvency,” but the bank was officially declared insolvent and its affairs were in the hands of a receiver. There are many ways by which a person or corporation can be declared insolvent, and any one of the orderly ways would be sufficient to bring the case under the rule above stated. No such finding was made in this case, and there was no allegation or conclusive showing to that effect, hence we must conclude that the bank in this case exceeded its authority in using the deposit to pay an unmatured note.
The giving and refusal to give instructions and the refusal to submit to the jury certain questions were in perfect harmony with the theory upon which the case was tried, and whether or not that theory was correct depends upon'the all-important question in this case as to the kind and amount of damages to which the plaintiff is entitled, if any. Holding, as we do, that the bank was without authority to appropriate the deposit to the payment of the unmatured note, the plaintiff was entitled to recover.some damages, at least nominal. Some of the authorities, as those from California, limit tee nominal because of a special statute. In the case of Third Nat. Bank v. Ober, 178 Fed. 678, it was held:
“A depositor, whose check is dishonored by a bank when he has funds on deposit to meet it, has a right of action against the bank for a violation of his legal rights, and is entitled to recover at least nominal damages. If he is a merchant or trader, it will be presumed, without further proof, that substantial damages are sustained, and such damages may be recovered; but, if he is not a merchant or trader, there is no such presumption, and where the act of the bank was without malice, and simply the result of a clerical error, he is entitled to recover only nominal damages, unless special damages are alleged and proved.” (Syl.)
The plaintiff in this case was admittedly not a merchant or trader. The closing paragraph of the opinion just cited will give us'a slight knowledge of the facts to which the learned judge was applying the law above quoted:
“A mere technical violation of a right is not just basis for a recovery of general and substantial damages, where no actual injury is shown, and none appear to follow as the natural and probable consequences of the act. In the case before us there was no averment of particular circumstances or special injury, aside from the protest fees, and none were proved. On the contrary, witnesses of plaintiff, who knew of the dishonoring of his check, testified that his credit was not injured.” (p. 680.)
In the instant case there was positive testimony that there was injury to his credit, rather than the opposite, and there were averments and proof of such loss- and injury.
“Plaintiff having sufficient funds in the bank and the failure of tfie bank to honor his check being due to its mistake, where plaintiff proved clearly that he was subsequently refused credit by the person to whom he gave the check, he was entitled to have submitted to the jury the question of the amount of damages which he had suffered.” (Schein v. Public Bank of New York City, 167 N. Y. S. 384, syl.)
Some of the strongest cases cited in favor of the damages being only nominal refer to the dishonor of the check being an oversight, a mistake, or excusable mistake. (Friedman v. Edgewater State Bank, 215 Ill. App. 36; Katz v. Pacific Bank, 209 N. Y. S. 497.) The general rule and the weight of authority appear to us to be in favor of substantial damages rather than nominal damages; and when submitted to the jury without specific testimony as to amount they are sometimes called temperate damages.
“It is a question more difficult of application than of general definition to determine what the measure of damages is for the refusal by a bank to pay a check when it has in its hands sufficient funds of the drawer for that purpose. It is held by the authorities that in such a case the plaintiff’s recovery is not limited to nominal damages, but he is entitled to recover general compensatory damages. The depositor, by proving special loss, is always entitled to recover substantial damages. And even where the depositor is unable to show any special loss or injury the authorities seem to be almost uniformly to the effect that he is not limited to mere nominal damages. If no special damage is proved, the jury may give such temperate damages as they may conceive to be a reasonable compensation for the injury which must have been sustained.” (5 It. C. L. 548.)
The amount of such damages is to be determined by the sound discretion and dispassionate judgment-of a jury:
“In many cases of tort, however, the injury complained of is of such a nature that compensation cannot be awarded by any precise pecuniary standard and there is no legal measure of damages, because the injury does not consist of pecuniary elements, or elements of which the value can be measured or expressed in money. The compensation which shall be allowed for an injury of this character is by the common law referred to the sound discretion and dispassionate judgment of a jury.” (1 Sutherland on Damages, § 2.)
An action of this kind, when the dishonor of the checks is done not by mistake but intentionally with a purpose of benefiting the bank financially, is very similar to actions for libel and slander, and therefore damages should be substantial rather than nominal.
“But the better authority seems to be, that, even if such actual loss or injury is not shown, yet more than nominal damages shall be given. It can hardly be possible that a customer’s check can be wrongfully refused payment without some impeachment of his -credit, which must in fact be an .actual injury, though he cannot from the nature of the case furnish independent distinct proof thereof. It is as in cases of libel and slander, which description of suit, indeed, it closely resembles, inasmuch as it is a 'practical slur upon the plaintiff’s credit and repute in the .business world. Special damage may be shown, if the plaintiff be able; but, if he be not able, the jury may nevertheless give such temporary damages as they conceive to be a reasonable compensation for that indefinite mischief which such an act must be assumed to have inflicted, according to the ordinary course of human events. Exemplary damages may be given when the failure to pay is malicious or the result of gross indifference; but they shall not be given unless the bank was guilty of fraud, malice, gross negligence or oppression.” (2 Morse on Banks and. Banking, 5th ed. § 458. See, also, Commercial Nat. Bank v. Latham, 29 Okla. 88.)
We conclude that under the facts and circumstances of this case the plaintiff was entitled to recover substantial damages instead of nominal; that the evidence justified such recovery notwithstanding he was not a merchant or trader; that the amount recovered was not excessive; and we find no error in the giving or refusal to give instructions, and no cause for reversal in any of the other assignments of error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries sustained in a railroad-crossing casualty alleged to have been caused by the negligence of defendant. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed and has argued many points. The real question presented is, Was plaintiff guilty of contributory negligence as a matter of law?
The facts are substantially these: Defendant operates a line of railroad from Junction City south and east through Geary, Morris and other counties. Near the south part of Geary county it intersects a township highway, commonly called the Clark Creek road. From its southerly direction this highway approaches the intersection on an angle twenty-six degrees thirty minutes west of south. It curves on the intersection, leaving it at an angle twenty-eight degrees west of north. The railroad crosses the intersection from northwest to southeast. Just northwest of the intersection it curves around a hill to the west. Southwest of the intersection, beginning a few feet from the railroad track and a short distance west of the highway, there is a natural hill about forty feet high, with steep slopes, especially toward the railroad. Nearly a mile southeast of the intersection is the station of Skiddy. About three miles northwest of the intersection is the station of Olson. The railroad track from Olson to Skiddy is on a down grade of l.g per cent. A train started or in motion at Olson will run down this grade on its own momentum without steam power; in fact, it is necessary to apply the brakes occasionally to keep it from running too fast. The maximum safety speed for a train down this grade, considering the curve and the condition of the track, is twenty-seven' miles per hour. One approaching this crossing from the south could not see very far up this track to the northwest because of this hill. If he had stopped his car seven feet from the south rail he could not have seen a train on the track approaching the intersection more than 203 feet away. One standing directly in the center of the track at the intersection would be able to see a train approaching from the northwest about 450 feet, and from a point in the highway 35 feet north of the crossing a man standing could see a train approaching from the northwest 800 feet. This was the farthest distance it was possible to see the train from any point on the highway on or near the intersection. At 290 feet west of the intersection is the whistling post for the station of Skiddy, and 1,150 feet west of the intersection is the whistling post for the highway crossing. At the intersection the railroad grade is about six feet higher than the level of the highway. The highway had not been constructed level with the railroad for the distance and in the manner required by the statute. (R. S. 66-227.) There was a grade on the highway to the track of 7.7 per cent from the south side, and on the north of 8 per cent. Plaintiff resided about four miles south of the intersection on a farm, which -he and other members of his family operated. He had been a school teacher for many years, and in the fall of 1925 was teaching school in Geary county about a mile north of the intersection in question. He drove from his home to the school and back each day in a Ford touring car. He had taught this school the year before. For about a year and a half prior to the casualty he had crossed the railroad at this intersection twice a day most of the time when school was in session, and was thoroughly familiar with the crossing. The day of the casualty was clear and there was no wind. Plaintiff approached the intersection • from the south. As he approached the tracks he looked to his right for a train and-saw none. When his car was within about seven feet of the south rail — he had slowed almost to a stop — he looked to the northwest along the track for a train and could see none, and listened and could hear none. He then proceeded to drive across the track, but before getting entirely across his automobile was struck by a train from the northwest and he was seriously injured.
The jury found the defendant was negligent in failing to sound proper warnings and in an improper grading of the highway on the railroad’s right of way. While there was evidence to the contrary, there is substantial, competent evidence that no whistle was blown at either of the whistling posts above mentioned, nor the bell rung as warnings for the approach of the train. The fact that the grade on the highway at the intersection had not been established, as provided by statute, is not controverted. The findings of the jury, therefore, settle the question of defendant’s negligence.
The question of plaintiff’s contributory negligence will now be considered. It will be observed that the situation was such that one coming from the south could not cross this intersection safely if he depended alone on seeing the train. There was evidence that if one were to stop his car when the front wheels were about seven feet south of the rails and go on the track and look for a train, or go to the point thirty-five feet north of the track in the highway and look for the train, and the train should not be in sight when he looked from either position, he could not go back to the car, start it and get across the track without being overtaken by the train if it were approaching just beyond his point of vision when he looked. Plaintiff testified he had given much thought to the safest method of crossing the track; that he would add nothing to his safety by getting out, going ahead and looking and returning to his car and then attempting to cross; that the method he pursued the morning in question was, in his judgment, the safest way to negotiate the crossing.
Appellant contends that it was plaintiff’s duty to stop his automobile before going on the track, and if he could not then see or hear a train, to get out of the automobile and go on the track, or to a point beyond the track in the highway where he could get the greatest range of vision of the track, and there look for a train; and that if he did not do so he is negligent as a matter of law, even though his doing so would not have added to his safety in crossing the track. This contention cannot be sustained. In Jacobs v. Railway Co., 97 Kan. 247, 251, 154 Pac. 1023, it was said:
“It has been, held that it is the positive duty of the driver of an automobile to stop, look and listen before crossing railroad tracks. [Citing cases.] On the other hand, it has been held that the driver of an automobile is not under all circumstances as a matter of law required to stop before crossing a railroad track. [Citing cases.] This state follows the rule last stated. [Citing previous Kansas cases.]”
This rule was again discussed in Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, where the quotation last made was set out with approval. It was there held that the driver of the automobile was guilty of negligence as a matter of law because he did not stop, but this was because he could thereby have added to his safety. The real question in each case is whether the driver of the automobile used due care for his own safety in attempting to cross the track. A railroad track is itself a sign of danger. One attempting to cross it must know that the train cannot stop for him, and that if a train strikes him while he is on the crossing, he is likely to be seriously injured or killed. Due care on his part, therefore, requires that he use every means, and his senses of sight and hearing, consistent with his own safety. If the situation is such that he can add to his safety by having his automobile come to a full stop before going on the railroad track and there looking as well as listening for a train, or if his safety could be promoted by his getting out of his automobile and going on the railroad track, or- even beyond it to a place where he could see farther along the track, prudence and due care would require that he do those things. But this court has never held that a traveler on a highway was compelled to stop, or to get out of his car and go on the track or beyond to look for a train, or to do any of those things, if the doing of them would not in fact add to his safety in crossing the track. Certainly one cannot be charged with negligence for failing to do a thing which adds to his danger.
. In Scott v. Railway Co., 113 Kan. 477, 215 Pac. 280, we had a situation quite similar to this, except in that case Scott was killed by being struck by a train while attempting to cross the track in -an automobile. He was traveling alone, and no one saw him approach the track so as to testify whether he stopped just before going on to the track, or whether he got out, went ahead and looked, or not. In that case, if Scott, when from nine to fourteen feet from the track, had looked, he could have seen from 400 to 600 feet up the track in the direction from which the train was coming. If he had there stopped his' automobile and gone up on the track he could have seen for a greater distance. The court was forced to presume that he did the things which would enable him to cross the track in safety, but having done those things and having started to cross the track he was struck by the train, then it could not be said as a matter of law that Scott was guilty of contributory negligence. This case was cited approvingly in Peterson v. Railway Co., 115 Kan. 751, 755, 225 Pac. 116, where a similar question arose. That case quoted approvingly from Beckham v. Hines, 279 Fed. 241, where it was held:
“A person driving an automobile on a highway is not bound as matter of law to actually stop before going upon a railroad crossing, but whether it was negligence to fail to do so is a question of fact for the jury.”
The facts may be such, of course, that the failure to stop would be negligence as a matter of law; but here the facts, as shown by the evidence, are that plaintiff would have added nothing to his safety by doing so, and the rule that one must stop when he can add to his safety by doing so has no application. In this case the question of plaintiff's contributory negligence was properly a jury 'question.
Appellant complains of evidence offered on behalf of the plaintiff. Some time after the collision and before the trial, tests were made at this crossing.' These consisted in timing trains from their emer gence in sight to their arrival at the crossing, determining the extent to which sounds could be heard, fixing the distances at which the trains could be sighted from the different points available to a traveler on the highway, and determining the interval of time necessarily consumed by a traveler in getting over the track by each of the three methods open to him: (1) Merely stopping to look, (2) stopping and going to the track to look, and (3) stopping and going to the point of farthest view, thirty-five feet on the other side, to look. These tests tended to prove that the safest way to negotiate that crossing was for the traveler to slow his car down practically to a stop at a point on the south side of the track when the front of his car was about seven feet from the south rail, and if he could not then see or hear a train approaching from the northwest for him then to put on his power and hasten across the track; and that he could not add to his safety either by bringing his car to a dead stop at the point just south of the railroad track, or by stopping his car there with his engine running and getting out of it and going forward either on the track or to a point thirty-five feet north of it, and then returning to his car and endeavoring to cross. The witnesses who made these tests testified concerning them. That evidence was properly received. See discussion on this point in Johnson v. Railroad Co., 80 Kan. 456, 103 Pac. 90; 1 Wigmore on Evidence, 2d ed., § 445.
Defendant’s claim adjuster saw plaintiff at the hospital a few days after his injury, and after talking with plaintiff wrote a statement which plaintiff signed, which purported to give plaintiff’s version of how the collision occurred. Defendant attached a copy of this statement to its answer and pleaded it as a defense. In reply plaintiff neither admitted nor denied that he signed the particular statement, and alleged the circumstances under which, the adjuster visited him, his physical and mental condition, and averred that if he signed the statement set out it contained statements which had not been made by him and which had not been read or explained to him. Defendant contends that this statement is a “writing” within the meaning of R. S. 77-201, 18th clause, and that the legal effect of pleading it, under R. S. 60-729, was to entitle defendant to judgment on the pleadings, unless plaintiff denied its execution under oath. Clearly this argument is far-fetched. This is not an action founded on a written instrument; it is an action in tort. This statement was neither the foundation of a cause of action nor of defense; at most it was only evidence of statements of plaintiff against his interest. Even if, by virtue of the statute, its execution by plaintiff is admitted, the reply is, in effect, a confession and avoidance.
Other matters complained of by appellant have been examined and found to be without substantial merit.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action was brought by the plaintiff after the failure of the American State Bank in Wichita and the appointment of a receiver, to establish a preferential claim against the receiver and against the Reserve State Bank, which purchased from the receiver some of the assets of the American State Bank. The only defense in the case by the receiver and the Reserve State Bank was on the question of the claim being preferred, it being admitted that the plaintiff had a common claim against the receiver in the amount alleged. A jury was empaneled, but upon making the admission just mentioned, during the course of the trial the jury was discharged and the case was tried to the court, who made extensive findings of fact and concluded the claim to be a preferential one and rendered judgment accordingly in favor of the plaintiff and against the defendant receiver and the Reserve State Bank, from which judgment the receiver and the Reserve State Bank appeal.
In June, 1923, the Kansas City, Mexico & Orient Railway Company was indebted to the Colorado & Southern Railway Company in the sum of $1,501, for which indebtedness the Colorado & Southern Railway Company drew its draft on the Orient Railway Company and deposited the draft in the Colorado National Bank, of Denver, Colo., for collection and credit. The deposit slip issued by the Denver bank showed that credit-was given to the plaintiff conditionally, the bank reserving the right to charge back to the depositor all unpaid items or returns. The Colorado bank on the same day in due course of business forwarded the item to the New England National Bank, of Kansas City, Mo., for collection and credit, which bank in due course forwarded the item to the Federal Reserve Bank, of Kansas City, Mo., for collection and credit. On June 16, 1923, the Federal Reserve Bank in due course forwarded this item to the American State Bank, of Wichita, for collection and returns. Some of the instructions given in the letter of transmittal were the following: “Do not remit for this collection unless it is actually paid.” “Please remit by draft on Kansas City.” The draft was duly received by the American State Bank on June 18, 1923, and at 11 o’clock that day the said bank presented it at the meeting of the Wichita clearing house, together with other items, and was given credit for the full amount thereof on the settlement sheet of the clearing house, it being by previous arrangement of the Orient Railway Company cared for by the Fourth National Bank, of Wichita, and in such settlement the American State Bank was required to “put up” a difference of over $17,000, the amount of its debits exceeding the amount of this and other credits by that amount in that day’s business. Upon receiving credit for this draft in this manner on June 18 at 11 o’clock, the cashier of the American State Bank immediately drew a cashier’s check on itself payable to “ourselves” for the sum of more than $18,000 in payment of collections which it had received that day from the 'Federal Reserve Bank, which included the draft in question of $1,501. The American State Bank closed its doors at 3 o’clock on the afternoon of that day and never reopened. The cashier’s check for more than $18,000 sent to the Federal Reserve Bank, not being indorsed by any of the officers of the American State Bank and the bank having failed before the check could be presented for payment, was returned to the deputy bank commissioner in charge of the American State Bank on June 19, and the receiver of said bank had said check in his hands at the time of the trial. A large share of the assets of the American State Bank were sold to the Reserve State Bank when it was organized. In the trial of the case it was admitted that the American State Bank was insolvent on June 18, 1923, and had been insolvent for one week prior thereto. Two of the findings of the court on this question are as follows:
“13. On June 18, 1923, The American State Bank was insolvent and had been in an insolvent condition for one week prior thereto.”
“15. That the insolvency of the American State Bank was known to the officers of said bank on June 18, 1923, at the time it accepted the draft in question for collection.”
There is only one question here for determination, and that is whether the $1,501 item so collected by the American State Bank and attempted to be remitted to the Federal Reserve Bank by the cashier’s check was a preferred claim against the assets of the American State Bank and its receiver. Our court has frequently held that there are two distinct steps to be taken in reaching a decision as to whether a claim against the assets* of an insolvent bank is entitled to be preferred:
“Before a claim ean be allowed as a preferred claim against the receiver of an insolvent bank, it is necessary to establish, first, that the claim in question is a trust fund; and, second, that the fund in some form was a part of the assets of the bank which passed into the hands of the receiver.” (State Bank v. State Bank, 114 Kan. 463, syl. fi1, 218 Pac. 1000. See, also, Nelson v. Paxton, Receiver, 113 Kan. 394,214 Pac. 784.)
The same two steps are necessary where the fund becomes a trust 'fund on account of fraud or fraudulent inducement. (Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68; Kirby v. Wait, 120 Kan. 400, 243 Pac. 1080.) A fund will not necessarily become a trust fund simply because the assets reaching the hands of the receiver have been augmented by the transaction. This is simply a feature to be considered separately and apart from the first essential as to preference and after it has first been determined that the fund is a sacred or trust fund, either on account of the relationship of the parties to the transaction as principal and agent, debtor and creditor, or trustee and cestui que trust, or on account.of the fraudulent conduct of the officers of the bank. Then in proper sequence arises the second question, Did the transaction augment the assets reaching the hands of the receiver? It can readily be seen that many a trust fund will fail of preference because it does'not augment the assets reaching the hands of the receiver, and, on the other hand) many a case can exist where there is no question about the assets being augmented; but that can avail nothing toward a preference unless it has already been found to be a trust fund. In nearly all of the earlier cases cited in this connection only one of these elements was involved or considered, the trust fund feature was conceded, agency admitted, etc. Such cases afford only comparative help, whereas in this both elements are contested.
The draft in question in making its trip from Denver to Wichita via Kansas City, Mo., passed through several banks for collection and credit, and undoubtedly the relation of one to the other) up to and including the American State Bank, in turn was that of principal and agent, and that relation might still have been maintained had it not been for the order of the Federal Reserve Bank requiring remittance to be by draft on Kansas City. This interrupted that relationship by making the Wichita bank a debtor. This direction was disregarded to the extent of using a cashier’s check instead of draft on Kansas City, which made the situation no better. Immediately, of necessity, the funds collected became a part of the funds of the collecting bank and were mixed with its funds, thus losing for them any claim of being a special fund.
“The general rule is that the title to commercial paper received for collection by a bank and forwarded to its correspondent in the usual course of business does not vest in such correspondent. The relation between the two banks, as between the depositor and the forwarding bank, is that of principal and agent merely. The correspondent bank receives such paper as an agent for collection, and the title does not pass. When, however, the paper has once been collected by the correspondent bank, and it has received the proceeds therefor, the relation between the remitting bank and itself is changed from that of principal and agent to that of debtor and creditor, and title to such proceeds will, in the absence of an agreement to the contrary, vest in the correspondent bank. The banks are presumed to contract in view of the well-known and established custom of banks, when acting as collecting agents for other banks, or, indeed, for any customer, to put all collections made by them into the general fund of the bank, unless directed to make of them a special deposit, and use them from hour to hour and from day to day in the transaction of their current business.” (3 R. C. L. 636.)
“As a general rule, the proceeds of paper collected by a barde becomes the property of the bank and a part of its general fund, and the bank becomes a debtor to the owner of the paper for the amount collected, less the charges for collection; and it follows that, on the insolvency of the collecting bank, there is no preference in favor of the owner of the paper or of a forwarding bank with respect to the proceeds.” (7 C. J. 616.)
Both the texts state the rule in subsequent paragraphs to those above quoted as being different where the paper is deposited for collection only or for collection under express directions to collect and remit. Such express directions are more or less common where the bank is suspected of being in failing condition, and they usually designate remittance in currency.
“Any agreement or understanding or course of dealing whereby the bank is to use the identical moneys collected and substitute its own obligation in its stead, destroys all idea of a trust.” (Akin v. Jones, 93 Tenn. 353, 362.)
This transaction was handled in the usual and ordinary way of making collections through banks, with the relationship of principal and agent existing until the collection was made; then the bank by its own obligation in the form of a cashier’s check acknowledged itself to be indebted to the Kansas City correspondent for the benefit of the plaintiff herein and the relation of debtor and creditor arose, which is inconsistent with the idea of the collection being a trust fund.
“Where a bank receives payment of a note placed with it by the owner for collection, and upon request of the owner delivers him a cashier’s check for the amount, there being then cash on hand sufficient to meet it, the position of the owner becomes that of a creditor of the bank, entitled to no preference over ordinary creditors upon the failure of the bank leaving unpaid a draft, which was given by it on presentation of the check.” (Massey-Harris Harvester Co. v. First State Bank, 122 Kan. 483, syl., 252 Pac. 247.)
The same or similar views are expressed in the following recent Kansas cases: Clark v. Bank, 72 Kan. 1, 82 Pac. 582; State Bank v. State Bank, supra; El Dorado Nat’l Bank v. Butler County State Bank, 120 Kan. 109, 242 Pac. 475; Guymon-Petro Mercantile Co. v. Farmers State Bank, 120 Kan. 233, 243 Pac. 321; First Nat’l Bank v. Farmers State Bank, 120 Kan. 706, 244 Pac. 1039.
It was admitted in the trial of the case that the bank was insolvent at the time this transaction occurred, and had been insolvent for a week prior thereto, and the court found that the insolvency of the bank was known to its officers prior to the acceptance of the draft for collection. There is considerable controversy as to the sufficiency of proof for this finding. It is claimed that the only evidence that was introduced on that subject was an unverified pleading from the files of the district court filed prior to the transaction alleging the bank to be insolvent and that such was inadmissible. Without attempting to decide the question of the admissibility of this testimony and the weight that should be given to it, we think that this being a usual and ordinary daily transaction of a bank and the fact that the check was sent immediately after and on the same day the draft was received and paid, goes to show with or without the knowledge of insolvency that the officers of the bank were trying to keep it going, and the situation is very different from that where a deposit is received when the bank is known to the officers to be insolvent. This transaction, if consummated, would not have enriched or benefited the condition of the bank, whereas a deposit would be wholly one-sided and without any immediate obligations whatever except to meet the checks of the depositor. In the case of First National Bank v. Farmers State Bank, 119 Kan. 198, 237 Pac. 652, the insolvent bank asked a neighboring bank for $1,000 in currency because it was short on currency, and gave its cashier’s check, with the understanding that it would be paid in four or five days. In the meantime the bank failed. The court held this was not of a fiduciary or trust character, and therefore was not a trust fund liable to a preference because of the fraudulent conduct of the officers of the failing bank.
“A bank is guilty of fraud on a general depositor in accepting his deposit after the bank has become hopelessly insolvent and has committed an act- of insolvency, and the depositor may recover from the receiver of the bank to the extent the deposit augmented the funds coming into the hands of the receiver.” (Kime v. Ladd, 112 Kan. 603, syh, 211 Pac. 628.)
“The general rule is to the effect that acceptance of general deposits by a bank which is hopelessly insolvent to the knowledge of its officers constitutes such a fraud as will entitle the unsuspecting depositor to rescind and recover back the money, or give him a preferential claim, or create a trust ex maleficio, provided other conditions sometimes held essential to a recovery, such as augmentation of assets, identification, etc., can be satisfied.” (20 A. L. R. 1206. See, also, City of Spring Hill v. Paxton, Receiver, 115 Kan. 412, 223 Pac. 283.)
The record here shows that this was one of many similar transactions the same day, and that the check sent out was for $18,000, all of which would tend to show that it was being done in the usual and ordinary course of business and not with a plan or design to fraudulently acquire the benefit of this collection. We therefore conclude that the relation of the parties is that of debtor and creditor and not trustee and cestui que trust, and that the fund in question was not a trust fund.
This conclusion makes it unnecessary for us to consider the second element as hereinbefore described in finding a claim to be preferential, viz., whether or not the funds in question reached the hands of the receiver.
With reference to the question of interest, the plaintiff is entitled to interest on its common claim from the date the bank collected the claim. R. S. 41-101 provides:
“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.”
In the case of Turner v. Otis, 30 Kan. 1, 1 Pac. 19, it was held in the dissolution of a partnership:
“Where a settlement is corrected by charging the defendant with a certain amount which he had wrongfully collected and withheld, such amount should carry interest from the time of collection.” (Syl. ¶ 2. See, also, City of Spring Hill v. Paxton, Receiver, supra; Honer v. State Bank, 114 Kan. 123, 216 Pac. 822.)
The judgment of the district court is reversed and the cause remanded, with instructions to render judgment in favor of the plaintiff for $1,501 and interest thereon, but that such claim shall not be entitled to preference in the distribution of the assets or entitled to any priority with reference to the assets purchased from the receiver of the American State Bank by the' Reserve State Bank. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to set aside the will of James H. Boettcher on the ground of undue influence exercised over him and on the ground that he did not have sufficient mental capacity to make a will. The action was tried without a jury. Judgment was rendered in favor of the defendants on the evidence introduced, and the plaintiffs appeal.
The only question argued is that judgment should have been rendered in favor of the plaintiffs on the evidence. They contend that undue influence was exercised over John H. Boettcher, and that he did not have mental capacity sufficient to make a will. A proper response to these contentions compels an examination of the evidence. The plaintiffs, and the defendants Emma M. Kneemeyer and Marie L. McManes, are daughters of John H. Boettcher.
On the question of undue influence there was evidence which tended to prove that the defendant sisters attempted to keep the plaintiffs away from their father before and after the time when his will was made, and that there was dissension between the plaintiffs and their sisters over the disposition of the property of their father. That evidence was hardly sufficient to establish undue influence; but if it had been, it might not have been believed by the court. The evidence-of the defendants tended to prove that undue influence was not exercised.
On the question of the mental capacity of John H. Boettcher there was evidence which established that in 1922 he was, in the probate court of Shawnee county, adjudged a feeble-minded person, and a guardian was appointed for him. There was no evidence to show that he had been found restored to sanity in a proceeding instituted for that purpose. Other evidénce of the plaintiffs tended to prove that he was not of sound mind and did not have sufficient mental capacity to make a will. It is not contended by the plaintiffs that the adjudication of feeble-mindedness conclusively established that Boettcher did not have sufficient mental capacity to dispose of his property by will. That adjudication was evidence of that fact, but the adjudication was not conclusive. The presumption of feeble-mindedness arising from that adjudication could be rebutted. (Water-Supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779; Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996; Lower v. Schumacher, 61 Kan. 625, 60 Pac. 538; 32 C. J. 758; 28 R. C. L. 100.) There was evidence to rebut the presumption. Boettcher might have had a lucid interval when the will was made. The following language is found in 40 Cyc. at page 1016:
“A will made by an insane person may be valid if made during a lucid interval.” (See, also, 28 R. C. L. 105.)
The evidence of the defendants, including that of medical experts, tended to prove that when the will was made Boettcher was of sound mind and was capable of making a will. The whole evidence concerning the mental capacity of John H. Boettcher presented a question of fact which the court found against the plaintiffs.
That places both propositions presented within the often-declared rule that where a trial court has found facts supported by evidence the findings of the trial court are conclusive on appeal even if there was evidence to the contrary.
The judgment is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover under the workmen’s compensation act. Plaintiff was injured while in the employ of defendant November 6, 1924. Upon application an arbitrator was appointed, who filed a report awarding plaintiff compensation of $12 per week for two years for total disability, and thereafter $6 per week for six years for permanent partial disability. Both parties filed exceptions to the award, which were denied by the court. The court, on May 6, 1925, sustained an application by plaintiff for a lump-sum judgment, but granted defendants a stay of execution for ten days, within which time defendants executed a bond approved by the court providing that no execution issue on the judgment so long as the employer continued to make payments in accordance with the original award undiminished by discounts. Payments were made by defendants in accordance with the award, and thereafter and within the two years plaintiff filed an application to increase the compensation. Evidence -was introduced showing plaintiff’s disability had increased. The court, however, denied plaintiff an increase of compensation, apparently on the theory that it was without authority to open or modify the judgment. It was successfully contended by the defendants in the court below that the court was without jurisdiction to review the award because the application for increased compensation was not filed within a year after rendition of final judgment as required by the provisions of the civil code relating to petitions for new trial. (R. S. 60-3005.) The provision of the code relied upon by defendants is not applicable here. The proceeding is controlled by the provisions of the workmen’s compensation act. (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056.) The stay of execution and defendant’s bond were executed in accordance with the provisions of section 18 of that act (R. S. 44-530), which provides for such bond when there is question of the employer’s financial ability to pay. Section 16 of the act (R. S. 44-528) provides for modification of the award at any time before final payment. (Corvi v. Crowe Coal &, Mining Co., supra; Indihar v. Western Coal & Mining Co., 119 Kan. 748, 241 Pac. 448.)
It is apparent that plaintiff was seeking a review upon two grounds; first, that his disability had increased, and second, that the award of the arbitrator was grossly inadequate. There was evidence that his injuries had increased and that he had been able to earn on an average only $2.50 per week since his injury. The evidence showed that he earned more in 1925 than in 1926, and at the time of the hearing before the district court was unable to work because of such injury.
A contention by the defendant that the award was not subject to review because of being made for specific injuries cannot be sustained.
It is contended by the defendant that the trial court by its judgment found generally against the plaintiff on the facts as well as the law, and that therefore the court’s finding is conclusive. The record is not clear in this regard. If the trial court finds as a matter of fact that plaintiff is not entitled to increased compensation, that determination will, of course, be controlling.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
August Chippeaux was an employee of the Western Coal and Mining Company, and while in the regular course of employment was accidentally caught and crushed between cribbing and a cage of hoisting apparatus, and then fell back into the sump, a distance of about twenty feet, upon his head, shoulders and back. He claimed compensation and the defendant made payments thereof to the extent of fifteen dollars per week for a period of ten weeks, after which payments were discontinued. By consent an arbitrator was appointed and the parties agreed upon the questions submitted for arbitration. In the course of the arbitration a question arose as to the extent and duration of plaintiff’s disability, and defendant requested that an order be made by the arbitrator requiring him to go to the Bell Memorial Hospital at Kansas City, Kan., more than one hundred miles away and submit to an examination by Dr. Thomas G. Orr, of Kansas City, Mo., and accompanying the request was an offer to pay the expenses of plaintiff in going to and from Kansas City. Plaintiff declined to go, saying that he could not afford to pay the cost of taking his physician to that place, and that he desired him to be present if an examination was made. At the same time the plaintiff offered to go to Joplin, Mo., thirty-five miles ■away, for an examination. The arbitrator held that the plaintiff was not required to go to the Bell Memorial Hospital for an examination by Doctor Orr. At the close of the testimony the arbitrator found that plaintiff was totally and permanently disabled, and awarded the compensation provided by statute for such disabilities. Defendant then petitioned the district court for a review of the award upon all the statutory grounds, and when the case came before the district court defendant renewed his request for an examination by Doctor Orr, who is a member of the hospital staff and is also the surgeon of the United States Fidelity & Guaranty Company, which had given a bond insuring defendant. The grounds of plaintiff’s objection were:
“That tlie same is not required under the workmen’s compensation law of the state of Kansas, as requested by defendant, for the reason that the examination requested by defendant is not reasonable in time or place, and for the further reason that it is not reasonable because the cost to the plaintiff of having a physician of his own choosing present at such examination as requested by defendant in Kansas City, Kan., is prohibitive to the plaintiff, for the reason that it would be impossible for the plaintiff to have a physician and surgeon of his own choosing present at Kansas City, Kan., to participate in the requested examination by the said defendant, and for the further reason, the said plaintiff has submitted himself with great expense to himself in order to have his own physician present, at defendant’s request, to an examination by Dr. A. M. Gregg of Joplin, Mo., and for the further reason that the examination requested by defendant is of the same type of examination that can be made by doctors in Crawford county, Kansas, and doctors in Joplin, Mo., and in close proximity to the city of Pittsburg, Kan. And object for the further reason that the defendant has had the plaintiff examined, and the said plaintiff has submitted to examination by Dr. C. H. Fayne, of Pittsburg, Kan., and Dr. W. V. Hartman, of Pittsburg, Crawford county, Kansas, as often as said defendant has requested the same; and object for the further reason that the defendant herein has refused to pay the necessary expenses and fees and costs to the plaintiff of having a physician and surgeon of his own choosing present at the requested examination by the defendants herein, at Kansas City, Kan., and for the further reason that the plaintiff is now asked to submit to an examination outside of the jurisdiction of this court, to wit: 135 miles from Pittsburg, Kan., at Kansas City, Kan., and he has already submitted himself to an examination by the defendant’s physicians, Doctor Hartman and Doctor Fayne and Dr. A. M. Gregg, of Joplin, Mo., thirty-five miles from Pittsburg, all at the request of defendant, and without objection. And plaintiff at this time offers to submit himself for examination, as required by section 44-516 of the Revised Statutes of 1923, under the workmen’s compensation law of the state of Kansas, and the plaintiff' further offers to submit to an examination by any physicians of the defendant in Crawford county, Kansas, and to present himself for such examination anywhere within the confines of Crawford county, Kansas, or the jurisdiction of this court, or to submit to any examination by physicians or surgeons of defendant’s choosing at any reasonable time or place.”
The court granted the request of defendant and directed the plaintiff to submit himself for examination under the supervision of Doctor Orr, and that the defendant advance to plaintiff a sufficient sum of money to pay his expenses to and from Kansas City, Kan., and while there, and at the same time directed the defendant to pay the plaintiff the sum of twenty-five dollars to be used for such expenses, and if said sum was not sufficient to pay the expenses, the defendant was to pay the additional amount necessary to meet such expenses of plaintiff. The court declined to make any order against defendant to pay the expenses of an accompanying physician chosen by plaintiff to be present when the examination was made.
The proceedings stopped at this point, and no further order was made towards the disposition of the proceeding.
The first question that arises is whether the order made is appealable. It is contended that it is not a final order and that the appeal should be dismissed. The second is that in the event it is held there was a right of appeal the requirement made by the district court was so unreasonable and unjust as to render the order erroneous.
The first question raised is the only one that is open to our consideration. The ruling relates to the obtaining and receiving of evidence upon which, together with such other evidence as may be finally received, a judgment may be rendered. It is substantially the same as a ruling admitting testimony or requiring the inspection of a paper or document which is intermediate in character and not reviewable until after judgment. (Railway Co. v. Burks, 78 Kan. 515, 96 Pac. 950.) The plaintiff insists that the order was judicial, and that may be granted, but it is not enough that it be judicial; it must also be final in character. The code provides that appeals may be taken from a final order or one that involves the merits of the action from the district court, and several other orders not material in this proceeding. (R. S. 60-3302.) The code then proceeds to define a final order:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.” (R. S. 60-3303.)
It is clear that the order is purely intermediate, that it does not involve the merits of the action or proceeding; neither does it determine the action and prevent a judgment.
Attention is called to the provision of the compensation law to the effect that an injured employee' shall, upon the request of an employer, submit himself for examination at some reasonable time and place by a reputable physician or surgeon selected by the employer, and it also may be had at intervals thereafter. Among other things, it is provided that in such examination the employee shall be entitled to have a physician or surgeon of his own selection present to participate in the examination, and that unless reasonable opportunity'be given for the employee’s physician to participate the employer’s physician shall not be permitted to testify in the case. (R. S. 44-515.)
There is a further provision that if the employee refuses to submit to an examination, or unnecessarily obstructs or prevents it, his right to compensation will be suspended until he does submit. (R. S. 44-518.) Obviously the refusal to submit to the examination mentioned did not end the litigation. A party, however, is not deprived of an appeal and a review of the question when the litigation is ended. Under the statute a refusal to submit to an examination operates only to suspend payment of compensation until a submission to a reasonable examination shall have taken place. If plaintiff should conclude to submit to the examination the trial may then proceed to a finality> and if it be adverse to plaintiff he may then procure a review of the order. On the other hand, if the court should later determine that the examination required was not reasonable and just in view of the circumstances, and should choose to modify the order, the trial may then be completed. If the court, upon ap plication of plaintiff to proceed with the trial, should bar the plaintiff from further trial or should dismiss the proceeding the question would then be open for review.
It follows that the appeal must be dismissed. | [
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The opinion of the court was delivered by
Dawson, J.:
These are appeals from judgments of the Brown county district court in criminal prosecutions for forgery and passing a forged check.
. It appears that in December, 1926, the defendants, S'am and John J. Morris, came in an automobile to the filling station of the complaining witness in Hiawatha and purchased some gasoline which they paid forjvith a forged check purporting to bear the name of Charley De Roin and drawn on a Hiawatha bank for $8.
An information was filed against the defendants jointly in two-counts, the first of which was for the crime of forgery in the second degree, and the second was for uttering a forged check with intent to defraud.
Motions to quash the informations on verbose and indefinite grounds were overruled, and defendants were put on trial separately. They in turn objected to the introduction of evidence “on the grounds set forth in defendants’ motion to quash the information aforesaid.” The court sustained the objection so far as it pertained to the second count, but overruled it as to the first. The cause then proceeded to separate trials of defendants on the first count of the information and verdicts of guilty were duly returned after defendants’ motions for directed verdicts were severally overruled.
Defendants appeal from the adverse judgments and sentences pronounced on them; and the state conditionally asks consideration of the reserved question of law involved in the trial court’s ruling on the second count of the information.
And first, as to the defendants’ appeals. In this court, for the first time, defendants reveal the point involved in their motion to quash and in their objection to the introduction of evidence and in their motion for an instructed verdict. They say:
“The first count of the information failed to allege an intent to defraud.”
It takes j ust a line and a half of type to tell this court what was the matter with the information. In the trial court they used a page of type to conceal that point.'
In State v. Bell, 121 Kan. 866, 869, 250 Pac. 271, it was said:
“The rule has been frequently announced by this court, and should be applied here, that whenever a litigant' has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.”
Moreover, the first count of the information was drawn in substantial conformity with R. S. 21-608, which is the pertinent paragraph of the crimes act defining the crime of forgery in the second degree as committed by defendants. In this paragraph the words “with intent to defraud” are not included. The crimes act deals generally with the crime of forgery and related felonies in article 6 of chapter 21 of the Revised Statutes, and includes some seventeen paragraphs in which “intent to defraud” is an express statutory element of the offense, but it likewise includes some eleven other paragraphs, like R. S. 21-608, which define and denounce different phases of the crime of forgery, and in each of which the words “with intent to defraud” are omitted. This feature of our crimes act was not clearly developed in State v. Gavigan, 36 Kan. 322, 13 Pac. 554, in which it was held that the absence of an allegation in the information that the forgery was perpetrated with intent to defraud was fatal to a conviction under another section of the crimes act (R. S'. 21-628), notwithstanding the statute itself was silent thereon. In that case, also, the defendant was ordered discharged because of the want of this technical averment, notwithstanding the evidence supplied every element of proof to support the verdict and judgment — all of which goes to show that the administration of the criminal law has made substantial progress in the last forty years, for nowadays this court would not think of making such an order under the circumstances. Within the last year, this court upheld a conviction of murder in the first degree where the information merely charged the defendant with assault with intent to kill. (State v. Baker, 122 Kan. 552, 253 Pac. 221.) In the Gavigan case, supra, it was said, “Forgery is generally defined to be the fraudulent making or alteration of a writing to the prejudice of another man’s right.” (p. 326.) Substituting that meaning of the word “forge” in the information in the case at bar, it would allege that John J. Morris and Sam Morris . . . did then and there falsely, unlawfully, willfully, and feloniously make a fraudulent writing to the prejudice of another man’s right, etc. What purpose would be served by adding thereto that such act was done with intent to defraud?
A good form book is a valuable adjunct to the office equipment of a prosecuting attorney, and he would do well to consult it before drawing an information in an important criminal case; but the day is past in this jurisdiction, we trust, when criminals can hope to go unwhipped of justice becausemf the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense. There is no pretense here that defendants did not understand they were on trial for the fraudulent making of a writing — a check on a Hiawatha bank — to the prejudice of the owner of the filling station, and the bank, and the man whose name they wrote on the check. In such circumstances not only was the first count of the information sufficient, but the criminal code forbids this court to set at naught the judgments entered against defendants under the circumstances. (R. S. 62-1718.) In State v. Fleeman, 102 Kan. 670, 677, 171 Pac. 618, it was said:
“The code of criminal procedure was framed to supersede the common law with a more rational sj^stem. While it is defective in many respects, and in many others exhibits a conservatism which contrasts strongly with its general liberality, it is distinctively modem. The tradition of the common law, however, was so strong that it came near superseding the code. In time the code was rediscovered, and it is the purpose of the court to interpret and apply it according to its true intent and spirit.”
The case of State v. Gavigan, 36 Kan. 322, 13 Pac. 554, is overruled, and the judgments of the district court on the verdicts of guilty on the first count of the information are affirmed.
Touching the state’s reserved question on the quashing of the second count of the information, defendants’ objections to that count were not revealed to the trial court. They now say it was bad for duplicity. It does not take many words to state their point of law once they get the notion to do so. We note, however, that the state waives its right to a review of its reserved question if the judgment against the defendants on the first count is upheld. Therefore the propriety of the trial court’s ruling need not be decided; but a keynote to its correct solution will be found in an excerpt from Rosekrans v. People, 10 N. Y. (3 Hun) 287, quoted in State v. Robinson, ante, p. 245, 259 Pac. 691. See, also, State v. Meade, 56 Kan. 690, 44 Pac. 619; 31 C. J. 771-775.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this appeal the St. Louis-San Francisco Railway Company brings up for review a ruling of the trial court denying its motion for judgment upon special findings returned by a jury in connection with the general verdict in which Henry Taylor was awarded damages in the sum of $2,250. A motion for a new trial was filed by defendant, but it was subsequently withdrawn and the only question presented on this appeal is, did the court err in overruling defendant’s motion for judgment upon the special findings?
The plaintiff alleges, among other things, that while he was riding upon the train, admittedly without ticket or permit, he took a position upon an oil car and while holding to a hand rail, with the train going at a rate of about forty miles an hour, he was accosted by two brakemen who, after some conversation with him, told him he would have to get off the train; that plaintiff informed them he could not get off while the train was going so fast, and thereupon the brakemen maliciously and willfully threw him from the train with the intention of killing him, while it was running over a high embankment. The defendant answered denying that the train was in charge of brakemen or that plaintiff was accosted or thrown off the train by any brakemen of defendant. It was further alleged that plaintiff was a trespasser on the train riding without right, transportation or the payment of fare, and that he voluntarily boarded the train without the knowledge of defendant, and rode in an exposed and dangerous position, and further, that the brakemen of defendant were not required or authorized to walk over the train while it was in motion or to eject trespassers while the train was in motion between stations, and'that if plaintiff suffered any injury on the occasion mentioned it. was caused by his own trespass and negligence and not by any negligence of the defendant. Special questions were submitted to and answered by the jury as follows:
“1. On the occasion in question, were the brakemen of the defendant required to walk along said northbound train while it was in motion between stations? A. No.
“2. On the occasion in question, were the brakemen of the defendant required to discover or eject persons from the train while the train was in motion between stations? A. No.
“3. If you find that defendant’s brakemen threw plaintiff from the train on the occasion in question, did they do so in furtherance of any duty required of them by the defendant; if so, what duty? A. No.
“4. If you find for plaintiff, state the names of the persons who threw plaintiff off the train? A. Unknown.
■ “5. If you find for the plaintiff, state upon what wrongful conduct of the defendant you base your verdict? A. Reckless .way of' putting him off the train.
“6. Do you find that on the occasion in question, plaintiff suffered his alleged injuries at the hands of persons who, with personal malice and intent to kill plaintiff, threw him off the train? A. Yes.”
The only question we have to consider is the effect of these special findings. It appears to have been contended, and that evidence was offered to the effect that none of the trainmen of defendant had anything to do with his fall from the train, but plaintiff testified that two men carrying lanterns approached him from different directions and violently threw him from the train. The jury found that he was thrown from the train by persons unknown. Assuming, as the jury seems to have done, that those who ejected him were brakemen, we have the question whether the defendant is liable for their act done not in performance of any duty they owed to the defendant, but done with personal malice and with the intent to kill plaintiff. It has been specifically found that brakemen of the defendant were not required to discover and eject trespassers from the train while it was in motion or even to walk over the train while it was traveling between stations. The jury also found that ejecting plaintiff from the train at the time and place in question was not done in furtherance of any duty owed by brakemen to the defendant, but was in effect a violation of the rules and requirements of the defendant. Instead of being done in furtherance of any duty, those who ejected him did it with personal malice and with intent to kill. Upon these facts we are unable to hold that there was a liability of defendant for acts done by its employees outside the scope of their employment, and done with personal malice. It has been settled that the liability of the master for the tortious acts of his servant depends on whether they were done in the master’s business and within the scope of his employment. To fasten liability on the master it is not enough that the act was done while the servant was at the time in the master’s service; the authority must have been expressly conferred or is fairly to be implied from the nature of the employment and the duties incident to it, and if not done within the duties of the servant or the scope of his employment, the servant alone is responsible. (Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386.) This rule was applied in Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, where a brakeman killed one of two trespassers who had been riding on the train but had left it at a station and were standing near the train with the appearance of an intent to board it again when the train started. The brakeman with a revolver in hand started towards the trespassers saying to them, “Get out of here.” They ran up an embankment away from the train exclaiming, “Go to hell!” and the brakeman following them fired a shot which killed one of the trespassers when he was forty feet away from the train. It was held that the action of the brakeman in pursuing the trespassers and shooting one of them while they were in flight away from the train was not acting within the scope of his employment nor in furtherance of his duty, and hence the company was not liable.
In the early case of Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, where an agent of the company assaulted and beat a person who had called at the station to transact some business with the agent, it was held that:
“A master is not responsible for the tortious or wrongful acts of his servant when these acts are not directly authorized by him nor done in the course or within the scope of such servant’s employment.” (Syl. It 1.)
In Brown v. Railroad Co., 11 Kan. 338, 207 Pac. 196, where the rule of the cases mentioned was followed, reference was made to an approved test of liability of a master for the torts of a servant. It was said, quoting from, Wood’s Master and Servant, 2d ed., § 307:
“The simple test is, whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him.” (p. 341. See, also, Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153.)
In view of the findings that the tortious act was not done in furtherance of any duty of the brakemen to the defendant, but was done by them with personal malice and intent to kill plaintiff, no liability of the defendant was established, as special findings control the general verdict, the result is that the verdict must be set aside and judgment entered in favor of the defendant. | [
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'The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to have the will of Edmund C. Crammer construed. As heirs of Edmund C. ■Crammer they claim to be part owners of property not disposed of by his will. Judgment was rendered in favor of the defendants on the pleadings, and the plaintiffs appeal.
The material parts of the will were as follows:
“Know all men by these presents, that I, Edmund C. Crammer, of Narka, in the county of Republic, in the state of Kansas, being in good health and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me made, and as to my worldly estate and all the property real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:
“1st. My will is that' all of my just debts and funeral expenses shall, by my executor hereinafter named, be paid out of my estate, as soon after my decease as shall be found convenient.
“2d. Of the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to the following, to be divided to and among them as follows, to wit: Lizzie Crammer Best, my daughter, a one-half (%) interest; Ella Huff, a four-tenths (Ho) interest, and Grace Crammer, my granddaughter, a one-tenth (Ho) interest. To have and to hold the same, for and during their natural lives, subject to the following terms and conditions: My will is that Grace Crammer, my granddaughter, shall not have or come into full possession of her one-tenth (Ho) interest until she becomes of legal age, and that- the said interest shall be handled by some competent and able guardian to be appointed by the probate court until she attains such legal age, when the same may be turned over to her to be used as she may see fit and proper. It is my desire that the said one-tenth (Ho) be invested in interest-bearing bonds or mortgages and that the whole amount, less guardian expenses, be turned over to her when she attains said legal age. It is also my will that if either my granddaughter, Grace Crammer, or Ella Huff should precede me in death, their interest in my property as stated above shall revert to my daughter, Lizzie Crammer Best, and they nor their heirs shall have no-interest whatever in my property as stated above. I also wish to state that my son, Joseph H. Crammer, of Johnston, Colo., has received a full and complete settlement from me that constitutes his share in my property, and he and his family have been amply provided for by me prior to this time, and it is my will that he shall not participate in the final division of my property. I wish to further state that Ella Huff, above mentioned, has been kind and faithful to me and my beloved wife, Hannah B. Crammer, who has preceded me in death, during the time we were together on earth, and I desire to reward her as above stated.”
The plaintiffs, Mabel Nettie Jameson, Grace Vera Reed, Ralph E. Crammer, Adrian J. Crammer, Charles R. Crammer, are children of Joseph H. Crammer and grandchildren of Edmund C. Crammer.. Lizzie Crammer Best is a child of Edmund C. Crammer. The relationship of Ella Huff to Edmund C. Crammer is not disclosed except as stated in the will.
The question presented is, Did the will dispose of the entire interest of Edmund C. Crammer in the property therein described?' The plaintiffs contend that the will gave to Lizzie Crammer Best, a one-half interest for her life; to Ella Huff, a four-tenths interest for her life; and to Grace Crammer, a one-tenth interest for her life, but did not dispose of the interest remaining after their deaths. The defendants contend that the will gave the property in fee to the persons named in the proportions set out.
Certain principles of law should be stated before the discussion of • the will is attempted.
Section 22-258 of the Revised Statutes reads:
“Every devise of real property in any will shall bo construed to convey all the estate of the testator therein which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.”
In In re Brown, 119 Kan. 402, 239 Pac. 747, the court said:
“In interpreting the language of a will, the law prefers a construction which will prevent a partial intestacy to one which will permit it, if such construction may reasonably be given.”
In Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, the court said:
“The rules of construction applied to wills by this court in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language the court must, as far as possible, put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator’s family and his estate, and from all the facts and circumstances find what his intention was.”
In Brown v. Brown, 101 Kan. 335,166 Pac. 499, the court declared that—
“A rule for the interpretation of wills, to which all other rules are subordinate, is that the intention of the.testator, as gathered from all parts of the will, is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.”
Edmund C. Crammer had the right to exclude his son, Joseph H. Crammer, and his family from any beneficial interest in the property of the testator, Joseph H. Crammer died before Edmund C. Crammer. For that reason, he could not have taken any interest in'the property, but his children became heirs at law of Edmund C. Crammer. The will specifically excluded Joseph H. Crammer from any interest in the property and in that exclusion recited that “he [Joseph H. Crammer] and his family have been amply provided for by me [the testator] prior to this time.” That language indicates that Edmund C. Crammer intended to exclude not only Joseph H. Crammer, but also all the members of his family.
In the opening statement of the will the testator says that he makes and publishes this his last will and testament “as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease.” The will then gives to Lizzie Crammer Best, to Ella Huff, and to Grace ‘Crammer, certain interests in the property, and then says “to have and to hold the same, for and during their natural lives, subject to the following terms and conditions.” The terms and conditions which follow concern the management of the property devised to Grace Crammer (Grace Vera Reed) until she attains legal age, when “the same may be turned over to her to be used as she may see fit and proper”; in other words, in fee.
The will then provides that if Grace Crammer or Ella Huff shall precede the testator in death, their interest in the property shall revert to his daughter, Lizzie Crammer Best, without restriction, and their heirs shall be excluded from any interest therein. The will gives to Lizzie Crammer Best and Ella Huff the same character of estate in the property as that given to Grace Crammer; that is, the fee.
After the devises to Lizzie Crammer Best, Ella Huff and Grace Crammer, follows the language excluding the son, Joseph H. Crammer, and his family from participation in the estate of the testator. The language, “to have and to hold the same, for and during their natural lives,” seems to imply that the testator realized that the devises named could not take the property with them on their demise. If we apply the principles heretofore declared in this state concerning the interpretation of wills and consider the language of the whole will in controversy, the reasonable interpretation of it is that the property devised should go to the three devisees named in fee, and that the will excluded Joseph H. Crammer and his family from any participation whatever in the property of the testator.
The plaintiffs rely on the principle declared in 28 R. C. L. 229, 230, as follows:
“The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication. ... A necessary implication is one which results from so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed . . . Instead the law favors that construction of a will which conforms most nearly to the general law of inheritance. Accordingly if a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other permit such issue to participate in a remainder limited upon a life estate given to the ancestor, the latter construction is to be adopted.”
The plaintiffs also cite other authorities to support their contention.
The principle on which they rely is modified by another principle stated in 40 Cyc. 1624, as follows:
“The absence of a limitation over may indicate that the first taker is to have an absolute estate, although his estate is expressly limited for life; but not where a life estate is clearly intended.”
To the same effect is 28 R C. L. 238.
Applying the principle contended for by the plaintiffs, modified as it must be by the other principle quoted, the same conclusion must be reached in the interpretation of the will as is compelled by an obedience to the declarations of this court.
The judgment is affirmed.
Johnston, C. J., and Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages sustained by the occupant of an automobile driven by another, when the automobile collided with a truck belonging to defendant, which defendant’s driver left standing on a public highway in the nighttime without exhibiting a red light visible at the rear end, as required by statute. Plaintiff recovered, and defendant appeals.
A highway known as North Broadway enters the city limits of Pittsburg from the north. Northward from a point about one-half mile from the city limits the highway is 24 feet wide. South of that point the highway is 40 feet wide. A street-car track enters the highway in the west shoulder formed by the widening of the highway. From the place of entrance the street-car track extends in a southeasterly direction until it reaches the center of the highway, and then occupies a space 8 feet wide in the center of the highway, until it reaches the city. The 8-foot space is filled with chats. The 24-foot roadway, the 40-foot roadway southward to the beginning of the 8-foot space, and the two 16-foot roadways outside the 8-foot space, are paved with brick.
About 9 o’clock on the night of November 7, 1925, Joe Bournonville, an employee of defendant, was driving defendant’s 3%-ton truck southward on the highway toward Pittsburg. The truck was loaded with an upright boiler. As the truck was crossing the streetcar track a short distance south of the place where the track entered the highway, the truck stalled, and because of engine trouble could not be started. Soon afterward, a street car came to the place where the truck was standing, and street-car employees and passengers assisted the driver in moving the truck in a southwesterly direction to the west side of the highway. The truck was placed parallel with and about a foot from the curb. The bed of the track was about 6% feet wide, so that its east side was about 7% feet from the curb. The street-car track directly east of the track had not yet reached the center of the highway, and the distance from the east side of the rear end of the truck to the west rail of the track was about 10% feet. The driver left the truck in the position described, and went to Pittsburg.
At about 11 p. m. Arthur McFarland was driving a Ford roadster southward on the highway. With him in the roadster were plaintiff and plaintiff’s wife. Plaintiff was sitting on the right side of the seat. McFarland was driving in the center of the highway, which was wet and slippery from drizzling rain. When he approached the car track, he reduced speed to about eight miles per hour, and turned sharply toward-the southwest, in order to cross the rails as squarely as possible to avoid slipping on them. The automobile lights disclosed the truck standing directly in front of him, a collision occurred, the Ford roadster was demolished, and plaintiff was severely and permanently injured. The accompanying sketch will assist in visualizing the scene of the accident.
When the accident occurred there was no red light on the rear of the truck. There was a dim light on the front of the truck, but it was up close to the front of the cab, and was not visible to travelers on the highway approaching from the north. The truck driver testified that, after the truck had been placed at the side of the highway, he went to Pittsburg, procured a lantern and a red handkerchief, returned to the truck, and with the lantern and handkerchief improvised a red light which he placed on the rear of the truck. He said this occurred about 9:45 p. m. There was no lantern on or about the truck when the accident occurred. There were good reasons to doubt the truthfulness of the driver’s story, and it may be assumed the jury disregarded it. At about 2 a. m. of November 8 defendant’s superintendent placed lanterns on the truck, and it remained in the highway until morning, when it was removed.
The important question in the case is whether the court properly interpreted the statute relating to automobile lights, in the instructions to the jury. The pertinent portion of the statute is part of R. S. 8-122, as amended by section 1 of chapter 84 of the Laws of 1925, and reads as follows:
“That every automobile using any public highway of this state shall show between one-half hour after sunset and one-half hour before sunrise two lamps exhibiting white lights, visible at a distance of three hundred feet in the direction toward which the automobile is proceeding, and shall also exhibit a red light, visible at the rear end.”
The court instructed the jury that failure to comply with the statute constituted negligence, and if the injury to plaintiff was caused by failure to exhibit a red light at the rear end of the truck, the verdict should be for plaintiff.
The context of the provision concerning lights relates to operation, and incidents of operation, of motor vehicles on public highways. No person shall operate a motor vehicle at a rate of speed greater than that prescribed. Any person operating a motor vehicle who shall occasion injury to another, shall stop and do specified things. A person operating a motor vehicle shall reduce speed when approaching a railroad crossing or a highway intersection. No driver of a motor vehicle, while operating it upon a public highway, shall use certain kinds of headlights, unless means are provided to prevent other highway users from being dazzled. There is no express provision in the statute relating to motor vehicles left standing on a public highway.
Defendant contends that when the entire section is considered, the words “every automobile using any public highway,” mean no more than every automobile operated on a public highway; that this interpretation is compelled by the provision relating to headlights visible in the direction toward which the automobile is proceeding; that the statute applies to moving automobiles only; and consequently, that the instruction was erroneous.
The purpose of a highway is for passage, travel, traffic, transportation, communication. The automobile is a vehicle used for travel, traffic, transportation, and communication, and the statute is regulatory of such use. Highways are not maintained for the purpose of providing places for storage of automobiles. Such use was not in contemplation of the legislature, and the subject was not referred to in the statute.
There is no indication that the legislature intended to make any sharp distinction in traffic regulation by choosing the terms “operate” and “operating” for some provisions, and by choosing the phrase “using the highway” for the provision relating to front and rear lights. The purpose of the regulation was to promote public safety. The terms employed to express the purpose were not used in any technical sense, and operation of an automobile on -a highway, and use of a highway by an automobile, both refer to the same thing, automobile traffic on the highway.
Automobile traffic, like other highway traffic, involves movement from place to place. The movement involved does not, however, demand uninterrupted motion. There may be stops of greater or less duration, according to circumstances, connected with the traffic. When an automobile driver on a crowded street kills his engine just as he is given the “Go” signal, and the traffic officer begins to gesture excitedly and speak vehemently, and those behind toot their horns, and he becomes sensible of a general heating up inside and moisture on his brow, he realizes his car is very much a part of moving traffic. A flat tire to be changed on a muddy or dusty road between hedges, under a blazing summer sun, may arrest motion, but the automobilist is none the less traveling on the highway. Stops for limited periods are quite indispensable to the conduct of business and to social intercourse generally. All temporary stop-pings attending ordinary use of a highway by an automobile passing from place to place are incidents of operation linked with motion by necessary relationship, and in general understanding are not discriminated from motion as disconnected, independent modes of highway use. The subject of regulation by the statute was movement of automobiles on highways, in the sense indicated. A red light at the rear end visible at night was deemed essential. The purpose was to provide a danger signal to overtaking traffic. The warning is more necessary when the automobile is at rest than when it is in motion, and the court holds the regulation applied to defendant’s truck, left standing on North Broadway because temporarily disabled while transporting the upright boiler toward Pittsburg.
Courts differ respecting application to auto vehicles standing on highways of statutes relating to display of lights. (1 Blashñeld on Cyclopedia of Automobile Law, 390 [1927]; Berry on Automobiles, 5th ed., § 193 [1926]; 47 A. L. R. 703, annotation.) What this court regards as the preponderance of judicial opinion agrees with the views which have been expressed.
The statute applies to auto vehicles allowed to stand on city streets at night, and defendant’s attorneys foresee grave complications resulting from its enforcement. The writer of the brief fears that if he should go to church some Sunday night and park his automobile so that its headlights would shine full upon the preacher in the pulpit, he might be arrested for disturbing public worship. It is not likely the preacher would be annoyed. The event would probably plunge him into contemplation of those intense lights which gleam in precincts above and glare in precincts below this sinful world, revealing the dissimilitude between paradise and perdition.
The difficult question in the case is whether plaintiff was guilty of contributory negligence. The jury returned the following special findings of fact:
“5. Could the plaintiff have seen the truck of defendant parked on the west side of the road by looking ahead and observing prior to the collision? A. Yes.
“6. If you answer question No. 5 ‘yes/ then state how far north of the truck plaintiff could have seen the truck before the collision, had he been looking ahead and observing the road. A. Ten feet.”
Before turning to cross the car track, McFarland was driving in the center of the.highway.- When he made the turn, he did not proceed directly westward, but southwesterly. When he saw the truck, he turned to the left in an effort to avoid it, but was unable to do so, and his right fender struck the truck “right on the northeast corner of the rear end.” The point of collision was necessarily south and west of the place at which the turn was made. The distances were not definitely established, but finding No. 6 evidently implies that the plaintiff could not see the truck before the turn was made. Defendant contends the finding, thus interpreted, is contrary to the undisputed testimony. The Ford lights were good, bright magneto lights, with new bulbs and clear glass lenses. McFarland said he could see an object as big as a truck at a distance of 150 to 200 feet, plaintiff said he could see “pretty fair about 250 feet or somewhere along there,” and defendant concludes that if plaintiff had been looking, he could have seen the truck in time to warn McFarland and prevent the accident.
The state of the weather at the time of the accident has been referred to. The side curtains were on the Ford roadster and the windshield was down. McFarland kept the windshield clear of mist in front of him with a windshield wiper. Plaintiff said it was misting, was raining on the windshield, and he could not see very well. The breadth of beam from the Ford roadster lights was not established. The only testimony on the subject was given by McFarland in describing the lights: “They threw a light out at the side the same as an ordinary light.” No witness ventured to say what this indicated with respect to visibility of the truck under all the conditions of the accident. McFarland did not say that, while he was driving in the center of the road, his lights were such that, under the weather conditions, he could have seen defendant’s truck standing at the side of the road for a distance of 150 or 200 feet, or for any other distance. He said he was looking ahead down the center of the road, and did not see the truck until he turned toward it. Plaintiff testified he was looking out in front straight ahead, and ‘he did not see the truck until the Ford wheels were cut toward the southwest to cross the car track. This testimony is not necessarily incompatible with the description and estimates of light efficiency, and -tended to show the truck was hot sooner seen because it was not sooner identifiable. Of course plaintiff is held to the consequences of seeing the truck if he could and should have seen it. But this court is not able to solve the question of fact and declare, in opposition to the approved finding, that plaintiff could have seen the truck before the turn was made to cross the street-car track.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for breach of a marketing agreement. Plaintiff prevailed, defendant appeals and plaintiff moves to dismiss the appeal on the ground that less than the required amount is involved to give this court jurisdiction.
Trial to the court resulted in findings substantially that the defendant executed the contract with plaintiff, but was induced to do so by reason of fraud and misrepresentations; that subsequent to the execution of the contract, the defendant confirmed and ratified the execution thereof by signing a proxy to vote for directors of plaintiff association on December 18, 1923, November 5, 1924, and May. 16, 1925; that the defendant sold and delivered to others than the plaintiff and in violation of his contract, 100 bushels of wheat in 1923, 499 bushels and 50 pounds in 1924, making a total of 599 bushels and 50 pounds; that $125 was a reasonable attorney’s fee.
The defendant contends chiefly that the court erred in refusing to allow him a jury trial and in the allowance for attorney’s fees.
' On the question of the defendant’s right to a jury trial, it may be said that while he had the right thereto, the action being one for damages, the facts testified to by him show that he suffered no prejudice by the court’s refusal to submit the case to a jury. (See Wheat Growers Ass’n v. Goering, 123 Kan. 508, 256 Pac. 119.) He testified to the exact amount found by the court to have been delivered to others than plaintiff in violation of his contract.
On the question of attorney’s fees, the defendant introduced evidence showing that a reasonable attorney’s fee in the case would be $100. The contract provided for payment of a reasonable attorney’s fee in the event of breach by the grower. The court found that $125 was a reasonable fee, so that the only question now in dispute between the parties is the $25 difference between the amount proved by the defendant and the amount found by the court, which is insufficient to give this court jurisdiction.-
Various questions raised by the defendant have been previously and recently considered and passed on in Wheat Growers Ass’n v. Roiuan, and cases cited, 123 Kan. 169, 254 Pac. 326; Wheat Growers Ass’n v. Massey, 123 Kan. 183, 253 Pac. 1093; and Wheat Growers Ass’n v. Oden, 124 Kan. 179, 257 Pac. 975.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action upon two notes given by appellee to the Scott Weighing Machine Company, one for $2,200, dated June 10, 1921, and the other for $1,200, dated November 7, 1921, the former payable in six months after date and the latter in five months áfter date. The petition alleges that they were assigned by the Scott Weighing Machine Company to the Merchants National Bank of Topeka and by the Merchants National Bank of Topeka to the appellant. The appellee in his amended answer alleges that the notes were given by virtue of a written agreement entered into by him and the Scott Weighing Machine Company on June 10,1921, whereby he was offered thirty-four shares of capital stock of said company for $3,400, and was to have six months in which to determine whether he would purchase and hold it or return it to the company, and in case it was returned to the company within six months the promissory notes were to be delivered to him. A reply was filed to the amended answer denying the right of the representative of the company who negotiated with the appellee to enter into such a contract, pleading estoppel on account of the payment and receipt of the dividend on April 25, 1921, and because that prior to July 21, 1924, the company became insolvent, and its assets and affairs were placed in the hands of a receiver. Trial was had to a jury in the district court of Jackson county, evidence introduced, and a general verdict and finding in favor of the appellee, and special findings to the effect that the notes were not indorsed until after maturity, and that a written contract or agreement regarding the stock was entered into between the parties. Motion for new trial was overruled and judgment rendered for defendant appellee.
Upon appeal contention is made that certain instructions requested were not given, and that the trial court erred in admitting over objection certain testimony regarding the contract referred to. With reference to the failure to give the instructions as requested this court is at a disadvantage by not having before it the instructions which were given by the court, which may possibly embody the substance of the instructions requested. The other error complained of has reference to the admission of testimony concerning the written contract alleged in the amended answer to have been made between Charles D. Scott, for the Scott Weighing Machine Company, and the defendant or appellee herein, A. W. Rolley. Under the pleadings the contract referred to became a proper issue in the case, and whether or not Charles D. Scott, who executed it for and on behalf of the company, had authority to do so becomes a question which must be determined from the testimony so introduced. Charles D. Scott was the secretary and treasurer of the Scott Weighing Machine Company, and the evidence shows he was selling the stock of the Scott Weighing Machine Company with the knowledge and consent of W. H. Davis, appellant herein, who was during most of the time covered by the evidence in this case the president of the said company, although it is shown Scott may not have been selling the stock under the direct supervision and direction of the president, but with his full knowledge and consent.
The evidence further shows that the written contract referred to in the amended answer and found by the jury to have been executed between the parties, provided in substance that Rolley “had six months to take it [the stock] or leave it alone,” and “that he [Rolley] had an option to take the stock within six months.” There was a conflict of testimony as to there being a written agreement, but the jury found that there was an agreement in writing as alleged in the amended answer. The evidence further shows that said written contract was lost, and for that reason the witnesses were permitted to tell of its contents. Their testimony further showed what the contract said was to be done with the stock and the notes after Rolley decided whether or not he would purchase the stock. The evidence further shows that at the time of the making of the written contract the stock was in fact delivered to Rolley and the notes were in fact delivered to Charles D. Scott. There was evidence showing that the notes were not indorsed by anyone or to anyone until long after their maturity. The evidence further shows that within six months from June 10, 1921, Rolley returned the stock to Mr. Scott and demanded the return of his notes, and Mr. Scott accepted the stock and agreed that “he would fix the matter up.”
Since the jury found there was a written contract between the parties at the time of these negotiations, June 10, 1921, it becomes necessary to consider all the evidence we have as to the contents of such written contract shown to have been lost and to place a construction upon it. Under all the evidence what does it reveal as the intention of the parties thereto? Is it a subscription to the stock, a purchase of the stock, or an option to purchase it? The distinction between subscription and purchase is given in 14 C. J. 508, as follows:
“A subscription to the capital stock of a corporation after its organization must be distinguished from a sale of shares by it. As we have just seen, subscribers to the capital stock of a corporation are, properly speaking, those who on the formation of the corporation or afterward mutually agree to take and pay for the shares of its capital stock. A purchase of stock, on the other hand, is where an individual, after the organization of the corporation is completed, makes an independent agreement with the corporation' itself to purchase shares of stock from it at a stipulated price. Whether a particular contract is a contract to purchase stock in a corporation or a contract of'subscription to its capital stock is a question of construction, to be determined from the intention of the parties ascertained from the contract itself and the law in force applicable to the subject matter. A purchase of shares, if fully executed, will make the purchaser a stockholder, but it does not make him a subscriber; and the rules governing subscriptions and sales of shares are different.”
The evidence does not warrant a construction of this contract as being one for a subscription or a purchase. The fact that.the stock was written up and delivered and the notes were executed and delivered at the time of the negotiation is the strongest kind of evidence in favor of its being a purchase. But that is wholly inconsistent with the substance of the contract, and inconsistent with the thought of a contract being necessary. If the delivery of the ■stock and notes had its full import a contract for any purpose whatever concerning the purchase-would have been futile. We must at least assume that two business men joining in a contract had the intention of expressing something therein and thereby that was not otherwise sufficiently or satisfactorily expressed. If they intended the transaction to be a purchase it needed nothing more than the delivery of the stock and notes. To meet their intention they thought something more was needed. What could it be? The appellant says it was to bind the company to repurchase the stock, and the appellee in his answer in one place uses the word “repurchase,” but we think the evidence does not support that view of the transaction. Rolley didn’t know whether he wanted the stock or not. He needed time to decide. The company was apparently willing to give him time. So he by the'terms of the contract was to decide in six months whether he would “take it or leave it alone.” We think it is more nearly an option given to him than a subscription being made by him with agreement to repurchase.
“An. option is a continuing offer or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price within a certain time.” (35 Cyc. 56.)
We are inclined to agree with the contention of the appellant that an agreement by a corporation to repurchase its stock may not be binding upon it, but if the contract is merely an option to purchase, the restriction imposed by the decisions cited by the appellant will not control. Neither do we think the alleged payment and acceptance of a dividend will work an estoppel, because if paid and received it was not during the time covered by the contract or while the appellee had the stock in his possession.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, j.:
The defendant in this case appeals from the judgment of the trial court imposing a sentence of confinement in the state reformatory for violation of a previous order of the court requiring him to support his wife after a plea of guilty under the wife-desertion act. The only question involved is whether the conduct of the wife in deserting her husband while he was supporting her under the order of the court is material in determining whether or hot the defendant has violated the terms of the order. The court held that the conduct of the wife was immaterial, and that the only question was whether the defendant had paid the wife the ten dollars per week as ordered. During the taking of the testimony the court said to defendant’s attorney, “You may cross-examine her [the complainant or wife] on the question of whether or not she has been paid, and that is the only question that the court is going to take up at this time.” ' ■ -
On July 27, 1925, the defendant pleaded guilty to the criminal charge of failure to support his wife, and the following sentence was imposed upon him that day by the trial court:
'. “I am not going to impose any sentence in this case at this time, except to make an Order for the support of your wife pending anything further that may be done in the case, and- the order of the court will be that you pay ten dollars a week, beginning next Saturday, to the clerk of the district court of Sedgwick county, Kansas, for a period of two years for the support of your wife and during the time which she may be confined that you make provision for her medical and hospital bills at that time. And you will be required to give bond in the sum of five hundred dollars for the carrying out of this order of the court.”
■ At the same time and in connection with the sentence the court gave him the alternative of living with and supporting his wife satisfactorily. The best expression of this alternative privilege is in the language of the trial judge as stated by him at the last hearing, as follows:
“Let the record show that the court at this time gives the defendant an opportunity of making his payments to the amount of fifty dollars to-day for the support of his wife under the orders of this court and the suspended sentence, and to continue under bond as arranged by this court upon bringing of the order of the court up to date. And, also, let the record show, in order that there may be no question about this matter, that at the time this case was brought up in court at the time the defendant pleaded guilty, that the court stated at that time, after the order had been made, that if they could live together satisfactorily and satisfactory arrangements could be made for the support of the wife that that would supply the ten dollars a week ordered to be paid by the court; but if they were not able to live together satisfactorily, then the order of the court was to be carried out — the payment of ten dollars per week for her support until further orders of the court.”
The evidence given on the second hearing on October 3, 1925, shows that they did live together for more than three weeks -immediately after the first trial in an apartment -furnished by him with the assistance of his father; that it was satisfactorily furnished, and that the provisions furnished were satisfactory. Then -the wife suddenly left without any notice whatever, and three days later informed'him by phone that she would not-return; She now makes no substantial objection to the home or provisions furnished, but complains of the too frequent calls of her mother-in-law, and that her medicines were not furnished as promptly as they should have been. On the witness stand she said she would not live with defendant at the same home or elsewhere; that defendant had asked her to live with him and she had refused. The following three questions were asked her, to which she gave the following answers:
“Q. Would, you be willing to live with Wesley at rooms separate from that house if he provided for you? A. No; I would not.
“Q. You wouldn’t go back to him at all? A. No.
“Q. If he provided you with as comfortable a home as his circumstances will allow and with clothing, good food, medical attention and such other things as he is able ito provide, would you go back and live with him now? A. No.”
•At the conclusion of the hearing on October 3, 1925, the court made the following statement:
“And I have always held, and still hold, that before prosecution of this kind, where a woman without just cause refuses to live with her husband, that she -is not entitled to prosecute an action of this kind. However, this action was prosecuted; the complainant in this case stated that she was willing to live with her husband if they could get along satisfactorily together. After his plea she did go and live with him for a while. Just why they separated is not very clear to the court, but I don’t think it is material in this case. The court will find from the information and proof offered in this case, that the order heretofore made by this court has been violated and that the defendant will now be called forward for sentence in this case.”
Thereupon the following sentence was imposed upon the defendant:
“It is, therefore, by the court considered, ordered, adjudged-and decreed, that the support bond of the defendant be and the same is hereby declared forfeited, and that the defendant be and he hereby is sentenced to serve two (2) years at hard labor in the reformatory at Hutchinson, Kan., and to pay the costs of this action.”
Had the court not given the defendant the alternative of supporting his wife, there might have been stronger grounds for holding that the only question involved was whether or not the defendant had paid the specified weekly allowance and concluding that he had violated the order if he had not done so. The statute authorizing this proceeding and imposing this penalty places it on the ground of the defendant’s failure “without just cause.” (R. S. 21-442.) When an honest attempt is made by the defendant to live with and support his wife in obedience to an order of court, and they again assume such marital relations, it is reasonable and right that he be punished as a violator of such order only when the failure was his fault or the result of his misconduct. Of course, the first trouble was admittedly his fault, as evidenced by his plea of guilty, but is he on that account to be held responsible for the acts of the wife which render a compliance with the order impossible? It is said he could have continued a compliance by taking the alternative; but the option or alternative was given the defendant, not the wife, when they had resumed living together.
“The chief object of the act is to compel the husband, when able, to support his family, and wherever he deserts his wife, .leaving her in destitute or necessitous circumstances, it is his duty to provide for her there unless some reason be shown why she should follow him elsewhere.” (State v. Gillmore, 88 Kan. 835, syl. ¶ 2, 129 Pac. 1123.)
The court not only encouraged this young couple to again live together by giving this alternative, but was clearly within the provisions of the statute when it did so. (R. S. 21-445.) Although the court excluded much- of the evidence offered, on the ground that it was immaterial, yet considerable evidence found its way into the record as to the circumstance of the second separation — so much that the trial judge said at the close thereof, as above quoted, “Just why they separated is not clear to the court.” Notwithstanding the defendant was out on bond and on his good behavior with an alternative requirement, yet because this is a- criminal case the evidence should be clear that he has been guilty of violating .both requirements, because he had a choice to comply with either.. Of course, he violated one of them from the beginning — the $10 weekly payment — but the court says it is. not,cle.ar as to their failure to live together. ... ......
“A wife’s refusal, without just cause, to live with her husband, either through leaving him, refusing to follow him, or remaining away from him, relieves him of criminal liability for her nonsupport.” (30 C. J. 1104.)
“There is authority that . . . the wife’s return to the husband precludes further enforcement of an order for his payment to her of a periodical sum.” (30 C. J. 1116.) . . .
. . . “If a husband is willing in good faith to maintain his wife if she will live with him, he cannot be convicted of a willful refusal or neglect to maintain her, even though he may have been guilty of ill-using her, for which reason she refused to return to live with him.” (13 R. C. L. 1192. See, also, People v. Pettit et al., 74 N. Y. 320.)
We think the evidence does not justify a conclusion that the defendant violated the order of the court given in the alternative.
The judgment is reversed and the defendant ordered released. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the administratrix of the estate of a deceased railroad employee to recover from the railroad company damages consequent upon personal injuries which he received and which occasioned his death. Plaintiff recovered, and defendant appeals. Plaintiff notes a cross appeal from a ruling sustaining a demurrer to the evidence offered in support of her reply.
Walter Ross Fuller was a car repairer in the shops of the company at Ottawa, and on January 11, 1923, was injured while engaged in repairing a car. He was taken to a hospital, where he was treated and from which he was released on February 22, 1923. On April 20, 1923, he settled with the company, received $1,150 in full satisfaction of his claim for damages from his injuries, and released the company from liability. He returned to work on May 1, 1923, but was not well or strong. In August he laid off for ten or twelve days. On his return he worked two weeks, and then was obliged to go to the hospital. He died on October 11, 1923, as the result of his injuries.
Fuller’s widow, Florence Fuller, was appointed administratrix of his estate. The action, however, was not instituted for the benefit of the decedent’s estate, and none of the proceeds, in the event of recovery, would belong to his estate. The plaintiff sued merely as a statutory agent, to collect damages and disburse them to statutory distributees. (Jeffries v. Mercantile and Elevator Co., 103 Kan. 786,176 Pac. 631.)
The petition contained two causes of action: First, for damages sustained by Fuller in his lifetime on account of pain and suffering, surgical .and medical expense, loss of time and diminished earning capacity; second, for damages sustained by Fuller’s dependents, his widow, son, and stepdaughter, consequent upon his death. The answer pleaded the release. In reply plaintiff pleaded that execution of the release was induced by fraudulent rejpresentations made to Fuller by agents of the company, or else that the release was executed under a mistake of fact. A demurrer was sustained to the évidence offered in support of the reply, and recovery on the first cause of action was denied. After a trial the jury returned a verdict for plaintiff for $5,000 on the second cause of action, and judgment was entered on the verdict.
Plaintiff based her action on the statute of 1911 relating to liability of a railroad company to an employee, or in case of his death to his personal representative for benefit of his dependents, for damages resulting from injury to the employee. The first section of the act reads as follows:
“That every company, corporation, receiver or other person operating any railroad in this state shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad, or in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow and children, or husband and children, or children, or mother or father of the deceased, and if none, then the next of kin dependent upon such employee for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such car rier, or by reason of any insufficiency of clearance of obstructions, of strength of roadbed and tracks or structure, of machinery and equipment, of lights and signals, or rules and regulations and of number of employees to perform the particular duties with safety to themselves and their coemployees, or of any other insufficiency, or by reason of any defect, which defect is due to the negligence of said employer, its officers, agents, servants or other employees in its cars, engines, motors, appliances, machinery, track, roadbed, boats, works, wharves, or other equipment.” (R. S. 66-237.)
The second and third sections (R. S. 66-238 and 66-239) modified the previously existing law relating to the defenses of contributory negligence and assumption of risk. The fourth section (R. S. 66-240) related to limitation of liability by contract rule or regulation, and to set-off of sums contributed to insurance, relief or indemnity paid to the injured employee. The fifth section read as follows:
“That any right of action given by this act to a person suffering injury shall survive to his or her personal representatives, for the benefit of those entitled to recover under this act, but in such cases there shall be only one recovery for the same injury.” (R. S. 66-241.)
The sixth section read as follows:
“That all acts or parts of acts so far as the same are in conflict herewith are hereby repealed.” (Laws 1911, ch. 239, § 6.)
If the injured employee settles his claim and then dies, there is no right of action for damages which he sustained to survive. In this instance the settlement which Fuller made with the company stood in the way of recovery on the first cause of action. Plaintiff was obliged to avoid it, and defendant contends she had no capacity to sue to avoid it. As indicated, plaintiff did not sue for the benefit of Fuller’s estate or anyone deriving benefit from him. She sued for the benefit of a class of persons claiming in their own right by virtue of the statute. Generally, privilege to set aside a transaction induced by fraud or mistake is personal to him who was defrauded or mistaken. Fuller was content to abide by the settlement during his lifetime. Nobody representing him seeks to set it aside, and the question is whether plaintiff’s vicarious intervention should be recognized. It does not appear this question was raised in the district court, and the district court merely ruled on sufficiency of evidence to sustain the reply. Therefore the question may be left at one side.
Fuller’s attorney was present when the settlement was made. The company was represented by W. E. Goodnow. So far as a member of the Fuller family knew, and so far as the record discloses, Fuller had never seen Goodnow before. Mrs. Fuller testified as follows:
“Mr. Goodnow told my husband that he considered him physically all right with the exception of being a little weak, and he thought he would be able to recover his work back where he was in the first place in a short time. My husband told him that he was in hopes that he would be, that he would soon be back to work. Mr. Goodnow said Doctor Gossett informed him that Walter was all right when he left the hospital with the exception of being weak. There was nothing in particular said at that time about what work my husband was to do, only they just told him that he possibly could get a job back at the yards again, whatever he would be able to fulfill. They never gave him any particular promise of any kind.”
Doctor Gossett was the company’s physician and surgeon who treated Fuller while he was in the hospital. Fuller’s stepdaughter was present when the settlement was made. She was then fourteen years old, and testified at the trial that Goodnow said he had been instructed by Doctor Gossett that Fuller was a well man when he left the hospital, with the exception of being’ weak, and would soon be well enough to go back to work. She testified further in reference to what occurred when the settlement was made as follows:
“This was two or three months after my father had got out of the hospital. He came out of the hospital February 22, and this was April 20. During that whole time my father hadn’t been able to do anything. All that Mr. Good-now said was that Doctor Gossett told him that he thought when my father came away from the hospital he had recovered, except he was weak.”
Plaintiff’s evidence disclosed that Fuller had been badly injured. He was crushed by a freight car while he was jacking it up to take the trucks out. When he went home from the hospital he was very weak and in a delicate condition. His collar bone lapped over, and the bone stuck up as though it would break through the skin. He had a big knot on the shoulder bone of each shoulder. When he went home he went to bed, stayed in bed most of the time, and there never was a time when he was free from pain. While he was in the hospital he complained much of his head, and more toward the last when he was supposed to be getting better. After he came home he would hold his head, and put his hands to his head, and say they hurt his temples. Before he returned to work for the company he did no kind of work about the house, and when he went back to work for the company in May he still complained of his head. He had not recovered when he left the hospital. While he was better when he went to work than he was when he came from the hospital, he did not improve very much between February 22 and May 1. Before he was injured he was a large man — not fat — and weighed 190 pounds. When he came from the hospital he weighed 110 pounds. While he afterward gained some strength, he never was the same as he was before he was hurt.
It will be observed that when the settlement was made no,, fact relating to. Fuller’s physical condition at that time was stated by anybody. Goodnow ventured a nonexpert opinion and a prophecy. Whether Doctor Gossett informed Goodnow that, except for being weak when he left the hospital, Fuller was then “all right,” or was a “well man,” or he “thought he had recovered,” Fuller knew better. He.knew what he had suffered for fifty-seven days after he left the hospital. So fas as returning to work was concerned, Fuller was merely told he possibly could get a job back, whatever he would be able to fulfill; and knowing his condition, Fuller only hoped he would be able to get his old position back and soon return to work. If Doctor Gossett was mistaken regarding Fuller’s condition when he left the hospital, Fuller was not mistaken about it when he signed the release, and if the parties were mistaken when the settlement was made, it was with respect to future duration of a condition from which Fuller was then suffering and from which he hoped he would soon recover. (Harp v. Red Star Milling Co., 121 Kan. 451, 247 Pac. 856, and cases cited in the opinion.) The charge that Fuller was induced to settle by fraud does not require discussion.
Under the law as it existed previous to enactment of the statute of 1911, plaintiff could not recover on the first cause of action, even if the settlement was voidable. Fuller’s cause of action for damages which he suffered did not survive. That cause of action went out of existence when he died as a result of his injuries and not as a result of some independent cause, and no one was given privilege to sue for damages which he sustained, either for benefit of his estate or for benefit of dependents. The result is, recovery on the first cause of action was properly denied on any theory of the company’s statutory liability.
When the statute of 1911 was enacted the following statute was in force relating to liability of a railroad company fqr injury to an employee:
“Every railroad company organized or doing business in the state of Kansas shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage: . . .” (R. S. 66-235.)
The following statute relating to death by wrongful act was also in force:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” • (R. S. 60-3203.)
Under this statute plaintiff could not recover on the second cause of action because Fuller could not have recovered had b.e lived. He had settled with the company and released it from liability. Plaintiff contends this statute conflicts with section 1 of the act of 1911 (R. S. 66-237, quoted above), which is the latest expression of the legislative will; the section was derived from the federal employers’ liability act; that act has been interpreted by this court to create two separate and distinct liabilities, one to the injured person, and one to his personal representative for the benefit of dependents; settlement by the injured person of his claim does not bar recovery by his administrator on the other (Goodyear, Administratrix, v. Railway Co., 114 Kan. 557, 220 Pac. 282); and the same interpretation must be given to the state act that was given to the federal act.
Every subject embraced in the act of 1911 was already dealt with in some form by statute or by judicial decision based on statute, except abolition of contributory negligence and assumption of risk as defenses and set-off, which were new. The new subjects were appropriated from the federal employers’ liability act, a copy of which appears as appendix “B” to the opinion in the Goodyear case. In some other respects the federal act was adapted, and some of its phraseology was adopted. When the Kansas statute was enacted, the federal act had not been interpreted, and nobody knew what the test of application to specific cases might reveal. No effort was made to carefully revise existing law, and the statute concluded with a confession of ignorance of its consequences — “All acts or parts of acts, so far as the same are in conflict herewith, are hereby repealed.” The futility of this nonsensical provision to accomplish repeal of anything, either expressly or by implication, has been pointed out many times. It was left to this court, therefore, to find out what acts, sections, sentences or phrases, scattered through the statute book, were abrogated or qualified, or were restricted or enlarged, and' to discover what gaps left in the new law might be filled with provisions of the old law. The result is, the problem of interpreting the Kansas act is very different from the problem of interpreting the federal act. The federal act entered a new field. It had no background of existing law to which it had to be related. The Kansas act had to be fitted into an existing scheme of law. (Harwood v. Railway Co., 101 Kan. 215, 171 Pac. 354.) So far as the provisions of the new law were the same as the provisions of the old, they were to be regarded as continuations, and not as new enactments (R. S. 77-201, First); and in a certain respect the very first section of the 1911 law is a continuation of a statute enacted in 1874. (Rockhold v. Railway Co., 97 Kan. 715, 156 Pac. 775.) In case of repugnancy, the old law is obliged to yield. Repeals by implication, however, are not favored. Repugnancy must be not merely plain, but must be irreconcilable, and if provisions apparently in conflict may be harmonized, both must be given effect.
As applied to the second cause of action involved in this case, the subject of R. S. 66-237 is this: If a railroad employee suffer an injury through negligence of the company’s officers, agents, or employees, which results in death, the company is liable to the employee’s personal representative for the benefit of certain persons who normally might suffer pecuniary loss on account of his death. When the section was enacted, that liability existed by virtue of R. S. 60-3203 and R. S. 66-235. While a lot of words were used in enumerating beneficiaries, nobody was included who was not included in 60-3203 — widow, children, and next of kin. By analogy of the statute relating to meaning of words denoting gender (R. S. 77-201, Third), widow would include surviving husband. Father and mother are next of kin after children, and in 1906 this court held the defendant in this case liable to parents for death of their son, although they were nonresident aliens. (Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301.) The limitation to dependents could scarcely be of practical effect, since without dependency, damages, which must always be proved, would be nil. Whether any causes of injury not involving negligence were added to the enumeration of wrongful acts or omissions is not important. The result is, so far as meaning of words employed is concerned, the distinct and specific liability created to come into existence at death of the em ployee is the same in all essential respects under the old law and the new.
The omissions from the new law are very significant. R. S. 60-3204 was in force when the new statute took effect, and reads as follows:
“That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”
Nothing of the kind appears in the new law. Was R. S. 60-3204 repealed with respect to liability of railroad companies by the act of 1911 because by the terms of that act nobody but an administrator may sue? The court regards the two statutes as in pari materia, and under the rules for interpretation which have been stated, R. S. 60-3204 was not repealed by implication.
R. S. 60-3203 provided that action to enforce liability for death by wrongful act must be brought within two years. Was that portion of the section repealed by the act of 1911 because that act contained no limitation upon time within which liability must be enforced? The court has held otherwise. (Harwood v. Railway Co., 101 Kan. 215,171 Pac. 354.)
R. S. 60-3203 provided the damages recovered in an action to enforce liability for death by wrongful act should not exceed $10,000. Was that portion of the section repealed by the act of 1911 because that act omitted all reference to amount of damages? While the question was not directly involved in the Harwood case, the court considered it in connection with the subject of time within which action must be commenced:
“In the death statute there is a provision limiting the amount of damages that may be recovered for death to ten thousand dollars, but the employer’s liability act does not place any limitation upon the amount of recovery, nor does it refer to the question of limitation of amount. The death statute has the express limitation, which is brought directly in question in this action, that the action for death must be brought within two years, while the employer’s liability act makes no reference whatever to the time in which an action may be brought. While the later act is much broader in its scope than the earlier one, and while both cover some of the same subject matter, there are important provisions of the earlier one not covered by the later one, and manifestly such provisions have not been repealed.” (p. 219.)
R. S. 60-3203 contains' a provision that the damages recoverable in an action for death by wrongful act shall be distributed in the same manner as personal property of the deceased. Nothing of the kind is contained in the statute of 1911. Is there then no rule for distribution among beneficiaries of damages recovered under that statute? The answer is obvious.
R. S. 60-3203 contained another limitation upon enforcement of liability for death by wrongful act which was omitted from the statute of 1911. The administrator may recover if the injured person might have maintained an action, had he lived, for the same act pr omission. The section has stood for many years, and evidenced a theory of liability which was well understood and which formed a part of the settled policy of the state. What was there about the words “liable in damages to any person suffering injury ... or in case of death ... to his or her personal representatives,” to indicate that only three of four express limitations on recovery contained in 60-3203 were to remain in effect; that the fourth was repealed, that a new theory,'of railroad liability had been adopted, and that the existing public policy of the state with respect to the subject had been abandoned? The answer to that question also seems obvious.
It must not be forgotten that we are not interpreting the federal law, or interpreting the Kansas act according to the interpretation which, after much study and conflict of opinion, has been placed on the federal law. We are interpreting the Kansas act as it came from the legislature in 1911, to take its place in a body of existing law, no provision of which was pointed out b3r the legislature as repealed. In the Harwood case, the court in discussing repeal by implication quoted from the opinion in the case of Stephens v. Ballou, 27 Kan. 594, as follows:
“If the provisions of the old act and of the new can be reconciled by any 'possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (p. 601.)
No difficulty is encountered in reconciling the old act with the new, and the court is not permitted to declare that the new act overturns and destroys the other.
Some of the existing obstacles to recovery by the injured person, and therefore to recovery by Ijis administrator, were considered, and were wholly or partially removed by the 1911 statute. The fellow-servant rule was abrogated, as it had been since 1874 by the legislation which developed into R. S. 66-235. It was provided that contributory negligence of the injured person should not bar recovery in an action for damages resulting from his death. It was further provided that assumption of risk should not be a defense in certain cases.' The statute was silent, however, concerning the common defense available under R. S. 60-3203, that the company had settled once for all with the injured person in his lifetime. This was an important subject. If the legislature intended to change the law respecting it, a few simple words would have accomplished the result. It chose not to express itself, and the provision is not repealed by implication from silence.
The statute of 1911 restated liability in its own way, with some prolixity and redundancy. It put into the form of the statutory provisions some rules resting on judicial decision, as that a receiver for a railroad company is under the same liability as the company, and that contracts for exemption from statutory liability are void. By means of express provision it made some important changes in the law. It contained a section relating to survival of whatever right of action was given, but provided there should be but one recovery for the same injury. It concluded with a repealing section; which had no more force than it would have had if it read, “All acts and parts of acts, so far as the same are not in conflict herewith, are not repealed.” It became a part and only a part of the statutory provisions relating to death by wrongful act, and became subject to those provisions in all respects not differentiated by the act itself. Read section by section and construed as a whole, the statute of 1911 is perfectly compatible with R. S. 60-3203, and recovery on the second cause of action should have been denied.
The judgment of the district court in favor of defendant on the first cause of action stated in the petition is affirmed. The judgment of the district court in favor of plaintiff on the second cause of action is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action brought by Harry F. Kastrup to recover damages from the Yellow Cab and Baggage Company for personal injuries inflicted upon him by Earl Harris, an employee and agent of the defendant, a verdict was returned in favor of the plaintiff awarding him $3,250 as damages and with it returned answers to special questions that had been submitted. When the evidence was closed the defendant moved the court to direct a verdict for the defendant, which motion was overruled. After verdict and special findings were returned, the defendant asked the court to set aside several of the special findings, but this application was denied and the findings were approved. The defendant then moved for judgment in its favor upon the special findings, and this motion was likewise denied. A motion for a new trial was presented for error committed in an instruction given by the court, and this motion was allowed on the ground that instruction number eleven was prejudicially erroneous in that it omitted to state that in order for the jury to find for the plaintiff it must first find that when Harris committed the assault he was acting within the scope of his authority expressly conferred on him by the defendant or fairly implied in the nature of his employment. This ruling is assigned as error by the plaintiff and the defendant in a cross appeal alleges error by the court in the several adverse rulings on motions made by it.
It appears that plaintiff was employed as a cab driver for defendant, which requires its drivers to give a bond or deposit $50 in advance to meet any damage done to the cab by the driver. Plaintiff was unable to make the full deposit, but he was permitted to give a post-dated check for $15 for that purpose, and to allow the company to deduct the balance from week to week from his pay checks. After three weeks of service a fender of the car driven by plaintiff was damaged, and he was called, on by Harris, the superintendent, to pay the check for $15. Plaintiff testified that he offered to pay the damage if an itemized statement of the same was given to him, while Harris testified that he made an absolute refusal to pay it. They went together to the headquarters of the defendant, where there was a further discussion of the claim, and plaintiff still insisted upon an itemized statement of the damage, while Harris was insisting on immediate payment. Plaintiff stated that Harris then hit him a hard blow on the head, causing him to fall on a cement floor, and that while he was down jumped upon him, striking him repeatedly on the head, gouging his eyes and thrusting his head violently against the cement floor, repeating all the time, “Will you pay, will you pay?” Harris testified, on the other hand, that he was held to the company for the amount of the unpaid check and was insisting on payment, and when plaintiff refused to pay, he told plaintiff that he would go to the office of the county attorney and procure a warrant of arrest against him, and started to do so. Whereupon plaintiff said he would go with him; that plaintiff tried to get in the car with Harris, when an encounter ensued and the fight proceeded to serious injuries of plaintiff.
At the trial defendant contended that the employment of Harris by the defendant did not contémplate the use of force. That the assault on plaintiff because of his failure to pay the check was outside the scope of the employment of Harris; that the personal attack ■on the plaintiff, assuming it to have been made, was not authorized by defendant, nor fairly implied by the-nature of the employment. The following-are some of the special findings returned by the jury:
“1. Was Earl Harris, at the time of and just before the altercation complained of in this case, liable to the defendant company in the sum of $15, for having accepted from plaintiff a check for $15 in lieu of a bond? A. No.
“2. In whatever may have been done by Earl Harris to collect the amount •of a check from the plaintiff, was he acting in his own behalf to collect a debt for which he was liable to the defendant company? A. No, he was acting for the company.
“3. Had Earl Harris, just before the altercation, left the office of the defendant company for the purpose of getting his automobile and going to see the county attorney in an attempt to have the plaintiff prosecuted for the giving of a worthless check? A. Yes.
“4. Was Earl Harris in any manner employed or authorized by the defendant company to assault or beat any persons from whom he might attempt to collect claims due or claimed to be due to the defendant company? A. No.
“6. Did the altercation between Earl Harris and the plaintiff occur because plaintiff assaulted or beat or attempted to assault or beat Earl Harris or to pull said Earl Harris out of his automobile? A. No.
“7. Was Earl Harris the agent of the defendant on January 10, 1924? A. Yes.
“8. If you answer question 7 in the affirmative, then state whether or not it was the duty of Earl Harris: (a) To hire and discharge cab drivers for the ■ defendant? A. Yes. (b) To obtain bond from the plaintiff and other cab drivers in defendant’s employ? A. Yes.
“9. Did Earl Harris, while acting as the agent of the defendant, assault, beat and strike plaintiff’s head against the cement floor and hit plaintiff in the face and eyes? A. Yes.
“12. Did Earl Harris, while acting as the agent of the defendant, beat and .strike the plaintiff to enforce the payment of the check? A. Yes.”
The instruction held by the court to be -erroneous is as follows:
“If you find from the preponderance of the evidence that Earl Harris was in the employ of defendant, and was authorized by it to collect the check or bond referred to in the evidence, and committed the alleged assault and battery upon the plaintiff as a means to enforce the payment by plaintiff of said check or bond, and you further find plaintiff was injured thereby, then the defendant in this case would be liable, but if you find that Earl Harris committed the alleged assault and battery upon the plaintiff because of the refusal of plaintiff to pay said check, and because he was enraged thereby, and not as a means of compelling the plaintiff to pay said check or bond, then the defendant would not be liable.”
The court, as has been stated, held that the omission of a statement in the instruction to the effect that before they could find against the defendant the jury must first find whether Harris acted within the scope of his authority expressly conferred on him, or fairly implied from the nature of the employment. On the other hand, it is contended by the plaintiff that granting the correctness of the rule with respect to the liability of the defendant, other instructions, to wit, the seventh, ninth and tenth, fairly include the principle mentioned by the court and which was not repeated in the eleventh.
“7. A principal or master is liable for injuries to third persons inflicted by its agent or servant when the act of the agent or servant causing the injury is-directly authorized by the principal or master or when the act of the servant or agent is done in the line of his duties while engaged in the business of the principal or master and done within the scope of his employment, and this is true even though the act of the agent or servant is willfully or maliciously done, but a principal or master is not liable when the agent or servant would not be liable if he had acted in his own behalf instead of as an agent or servant of another.”
“9. . • . The test of whether an act is within the scope of the agent’s or servant’s employment is not whether it was done during the existence of the-employment, but whether the act complained of was committed by the authority of the principal or master expressly conferred or fairly implied from the-nature of the employment and the duties incident to it. If an employee steps aside from his employer’s business, for however short a time, to do an act not connected with his employment, the relation is for the time suspended, and in that event the principal or master is not liable for the acts done. A principal or master is responsible for the tortious acts of his agent or servant where such acts are incidental to and done in the furtherance of the business of the principal or master, even if such acts are done willfully and in excess of the authority conferred, and is responsible for the manner of the agent in the execution of the authority and for the wrong of the agent in selecting the means 'bjr which the authority is executed.
“10. While an employer is responsible for the wrongful acts of his employee-done in the scope of the employment, yet if any act is done by such employee-solely to accomplish the employee’s own purpose or device, although in an interval of his regular service, the employer is not liable, for if the servant steps-aside from the master’s business, for however short a time, to do an act not- connected with such business, the relation of master and servant is for the time suspended, and this is true although the act was intended to promote the master’s interests.”
Although the court refused to set aside the special findings of the jury, it is manifest that in granting a new trial the court was not satisfied with the result and evidently determined that it was due to error committed in giving the eleventh instruction which omitted an essential element of liability. It is practically conceded that the defendant would not be liable unless it was shown that the assault by its agent was committed within' the scope of his employment, and that he was expressly authorized to use force or violence or that such authority was fairly implied from the nature of his employment. The principle has been often stated and applied in many decisions, among which we may cite: Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386; Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621; Brown v. Railroad Co., 111 Kan. 338, 207 Pac. 196; Weigand v. Chicago, R. I. & P. Rly. Co., 121 Kan. 610, 249 Pac. 615.
Plaintiff contends that the defect in the eleventh instruction was cured by the statements made in earlier instructions. It is true, as plaintiff contends, that all of the law of a case need not be stated in a single instruction, and if an omission in an instruction is supplied in others so that all taken together fully and consistently present the law applicable to the issues the jury are not likely to be misled. While the court in the seventh, ¡ninth and tenth instructions recognized that the master would not be liable for an assault or injury inflicted by an agent by authority of the master unless expressly conferred or fairly implied from the nature and incidents of the employment, it will be observed that the court was there dealing with an abstract principle. In the latest instruction the court was treating the case in the concrete, the particular case in hand, and had undertaken to state all the elements necessary to a recovery against the defendant. In that instruction the jury were told that if Earl Harris was in the employ of the defendant, and was authorized to collect the check, and committed the assault and battery upon the plaintiff as a means to enforce the payment by plaintiff of the check, and further found that plaintiff was injured thereby, then the defendant would be liable. That was the last statement of the court on the ground of liability, and since the court undertook to group in this instruction all the elements necessary to a recovery, it is plain that the jury may have been misled. There was no question but what Harris was in the employ of the defendant and authorized to collect the check, no question but that his assault on the plaintiff caused injury, and under the last instruction the jury could find against the defendant regardless of the authority of the defendant to use force or violence in enforcing payment. The rule stated in that instruction was inconsistent with that abstractly stated in the earlier ones, and when the court returned to the subject at the end of the charge, and gave an additional and different instruction, the jury may have inferred that the court intended as a last word to qualify the general instructions previously given. Again, the instructions being materially in conflict, the jury must have been at sea as to which rule they should follow, and no one can say which rule was applied in making their findings. It was not unnatural that they should conclude that the specific instruction dealing with the facts of this particular case should govern rather than the general instructión. In speaking of the claim that an erroneous instruction may be cured by another which is correct, it has been said:
“But while an instruction which is inaccurate or incomplete, may be cured by subsequently supplying the defect or accurately stating the law, yet if it is erroneous in that it states the wrong x'ule by which the jury are to be governed, it is not cured by another instruction stating the right rule as it is impossible to tell by which rule the jury was actually controlled in reaching its verdict.” (14 R. C. L. 813.)
We think no error was committed in granting a new trial.
In a cross appeal defendant urges that the court committed error in overruling its motions which have been mentioned, and especially its motion for judgment on the evidence and findings. It cannot be said that there was such a lack of evidence as to require judgment upon the evidence, and as to special findings it must be said that they were returned under improper instructions. In one finding the jury said that in the use of force to collect the check Harris was acting for the defendant, and in another that he was not employed or authorized to assault or beat a person from whom he attempted to collect a claim. There is apparent conflict in the findings, and in view of the record in the case we think it should be retried upon proper instructions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the insured to recover matured dividends on a paid-up life insurance policy from the company which issued the policy. Plaintiff recovered, and the company appeals.
The application for the policy was made on November 1, 1869. The policy was dated November 1, 1869, and Was issued from the home office of the company at Hartford, Conn., in consideration of the representations and declarations contained in the application and payment of an annual premium of $174.50 for a period of twenty years. The policy insured the life of Leavitt H. Thomas, of Meriden, Conn., in the sum of $5,000, payable to his legal representatives ninety days after notice and proof of his death. The policy was delivered to Thomas. Thomas-paid $140.50-on the first premium, and the policy provided the remainder of the first premium, $34, should be carried as an indebtedness against the policy until paid or canceled by dividends. The receipt for the first premium was dated November 1,1869, recited that it was not to be valid until countersigned by the agent at Meriden, and was countersigned on November 6, 1869. Thomas testified that something like a week after the policy was issued it was taken over by Seth J. Hall, whose place of business was next door to that of Thomas, who was a merchant. On November 6, 1869, Thomas had received the policy from the company, and Hall proposed to take it off his hands, as a matter of speculation. Thomas had other life insurance, felt he had been overpersuaded to take the policy, did not want it, and was glad to get rid of it. The result was, Thomas executed a formal written assignment of the policy to Hall, and delivered the policy and assignment to Hall. The assignment was dated November 6, 1869. On the same day Thomas gave Hall a promissory note for $5,000, payable on demand after Thomas’ death. On the margin of the instrument was a notation that the note was secured by assignment of the policy. Thomas was not indebted to Hall, received no consideration for the note and assignment, and the two men were not related to each other by blood, affinity, business association, or in any other way. Hall paid all subsequent premiums on the policy until the policy was fully paid up. In June, 1875, Hall executed and delivered to Thomas an instrument reciting the giving of the note and the assignment of the policy to Hall, and agreeing to rely entirely on security of the policy for payment of the note. Hall died in May, 1909, leaving a will. The policy and receipts for all premiums including the first were found in his safe. The assignment had been registered with the company. Hall’s estate was settled, and the executors assigned the policy to three of his children who were residuary, legatees. Thomas was 91 years and 7 months old at the time of the trial.
As indicated,, the action was one for dividends accruing on the policy subsequent to the time it became paid up, in the sum of $2,000. Personal service was made on the'company. The‘Hall residuary legatees, who resided in Connecticut, were made parties to the action, and were served by publication. The petition alleged they claimed some interest in the fund, denied they had any interest, prayed they be required to answer and set forth their claims, and prayed that judgment be rendered declaring they had no interest in the fund. They did not appear or plead. At the conclusion of the introduction of evidence, Thomas moved the court for a peremptory instruction to the jury to return a verdict in his favor, and the company requested the court to instruct the jury to return a verdict in its favor. Thomas’ motion was allowed, the company’s motion was denied, and the court instructed the jury to return a verdict for Thomas. Judgment was rendered on the verdict against the company for $2,000, with interest from the time the action was commenced, amounting altogether to the sum of $2,188.60. Judgment was also rendered in favor of the plaintiff against Hall’s legatees, as prayed for in the' petition. .
The answer of the company pleaded assignment of the policy by Thomas to Hall, and alleged that Hall and his successors in interest were rightful owners of the policy and the dividends accruing thereon; that the policy was issued at the instance of Thomas and Hall, as part of a gaming contract between them, and was unenforceable; and that because of the assignment, plaintiff had no interest in the policy or the accrued dividends. Assignment of the policy was conceded, and Thomas was obliged to avoid legal effect of the instrument in order to recover. He proved that Hall had no insurable interest in his life, that the note was without consideration, and that he gave the note and assigned the policy to Hall to promote Hall’s speculative enterprise. This being true, the assignment was ineffectual to accomplish the purpose for which it was executed. >
As indicated, the company contended the policy was issued to Thomas as part of a gaming contract. This contention was not sustained by the evidence. The application was made and accepted and the policy was issued and delivered in the regular way, and Thomas paid the first premium. Therefore, Thomas had in his possession on November 6,1869, a valid policy of insurance on his own life, with premium paid to November 1, 1870. This being true, Thomas contends validity of the policy was not affected by the void assignment, and he is entitled to the matured dividends from the company’s surplus allotted to the policy.
The court is not concerned with the status of the policy, whether valid or invalid, either as to Thomas or as to Hall’s legatees. As assignee of the policy; Hall paid the premiums (diminished by dividends) for the full premium period, amounting to $2,574.44. Thenceforward the policy was entitled' to participate in dividends of the company’s surplus, which at the commencement of the action amounted to $2,000. Therefore, Thomas seeks to reap the benefit flowing from Hall’s conduct, instigated by Thomas’ conduct in executing the invalid assignment. If the assignment were merely illegal in the sense that it lacked authority or support of law, it might be disregarded, and Thomas might claim the same privileges he would be. entitled to if it had not been executed. But such is not the case. The transaction, which included execution of the sham note, execution of the assignment, and delivery of the note, assignment and policy to Hall, was obnoxipus to the public policy of the state. Hall was simply speculating on length of Thomas’ life. At the beginning of the transaction Hall had no interest in continuation of Thomas’ life, and at the conclusion he had a large pecuniary interest in Thomas’ early death. Such transactions are regarded as having a mischievous tendency detrimental to the social welfare, apart from simple lack of legal recognition, and the settled position of this court is that assignor and assignee incur equal odium. While the guilty assignee gets nothing, the assignor will not be aided in attempt to avoid the assignment, escape consequences of his vicious conduct, and harvest where he planted no seed. The law leaves him where it finds him.
The position indicated was definitely taken in the case of Life Ins. Co. v. McCrum, 36 Kan. 146 (1887), 12 Pac. 517, and was maintained in the case of Insurance Co. v. Elison, 72 Kan. 199 (1905), 83 Pac. 410. While the facts on which those decisions were based differ in detail from the facts of the present case, the doctrine of the decisions is conclusive here. The court is satisfied it has correctly apprehended the public policy of this state, and it is not necessary to review decisions of cases arising in other jurisdictions.
The judgment of the district court in favor of Thomas and against the insurance company is reversed,, and the cause is remanded with direction to render judgment for the company. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of persistent violation of the liquor law, and appeals.
In 1924, defendant pleaded guilty in the district court to two violations of the liquor law — possession of intoxicating liquor and sale of intoxicating liquor. In January, 1927, defendant pleaded guilty in the district court to having intoxicating liquor in her possession. In the present action, the information contained four counts, charging violations of the liquor law occurring in February, 1927. Two counts charged possession, and two counts charged sales.
About February 1, 1927, four men went together to defendant’s house, and defendant provided them with whisky, which they drank while sifting in a room of the house. They were there about half an hour, and had several rounds of drinks. The liquor was served in glasses, and one of the men paid defendant for it at the rate of 25 cents per glass. Two of the men were witnesses at the trial and related what occurred. Their testimony was not disputed.
On Sunday, February 13, 1927, three men, Lee, Hoffman and Cummings, went from the city of Atchison across the Missouri river and into the state of Missouri, and there commenced drinking liquor about eight or nine o’clock in the morning. About noon they returned to Atchison, and at about 2:30 in the afternoon they appeared at defendant’s house. Lee and Hoffman testified that Lee 'went into the house and came out with a pint of whisky, which the three proceeded to drink. Then Hoffman went into the house and came out with a pint of whisky, which the three proceeded to drink. Lee testified he paid defendant two dollars for the pint he procured, and Hoffman testified he paid defendant two dollars for the pint he procured.
The error assigned is that cross-examination of Lee to affect his credibility, was unduly restricted.
Defendant offered to show that Lee was an habitual drunkard and had been arrested while drunk. Lee admitted he had once been convicted in police court of being drunk, and considering the appetite and capacity for whisky which his own testimony disclosed, it was not very material to his credibility whether he was in the habit of getting drunk.
Defendant desired to cross-examine Lee with respect to giving checks without funds in the bank to meet them, one in 1924, one in 1925, and one in 1926. The specific facts, which the evidence offered in support of the motion for new trial tended to prove, were these: In June, 1926, Lee gave Earl Green a check for five dollars, which was returned by the bank on which it was drawn, for want of funds sufficient to pay it. Green notified Lee the check had been returned. Lee did not reply, and Green sent it for collection. Subsequently, Lee took up the check. These facts, if admitted by Lee, did not constitute an offense under the worthless-check act (R. S. 21-554 and 21-555), and it was well within the court’s discretion to exclude an investigation of the collateral subject of Lee’s carelessness respecting overdrawing his bank account.
There is nothing else of importance in the case. Defendant’s guilt was fully established, it would have been better for her to adhere to her practice of pleading guilty, and the judgment of the district court is affirmed. ' | [
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The opinion of the court was delivered by
Hutchison, J.:
Uhrich Millwork, Ltd., a subcontractor, sued J. B. Brewster Company, the contractor, for balance of the contract price for millwork furnished by plaintiff to defendant for the construction of the junior high-school building at Independence. The contract between them was oral, and they differed as to the amount of it by $1,050, the plaintiff maintaining it was $13,850 and the defendant, $12,800. Other items of difference were mentioned in the petition, but they are not material to this case. The defendant filed a general denial and a cross petition claiming damages, first, for defective glazing of certain windows, requiring an expenditure on his part of $165.80 to put them in proper shape to meet the specifications, and second, $2,500 damages for delay in the furnishing of the millwork for the building, alleging that such delay amounted to a period of not less than sixty days in finishing the building. The reply was a general denial. Upon the trial to a jury the issues were by agreement reduced to three propositions, as follows:
“(1) The question of the contract price for the material furnished by appellants, appellants claiming the contract price was $13,850. The appellees claimed the contract price was $12,800.
“ (2) The question of whether or not appellees should have damages in the sum of $165.80 for the reglazing of certain windows.
“(3) The amount of damages, if any, appellees should be allowed against appellants on account of the alleged failure of the appellants to furnish the millwork on time and in accordance with the contract as alleged by appellees.”
It was further understood that the last issue also .contained the question of the time and manner required by the contract for the furnishing of the millwork. The jury found for the defendant in the sum of $1,575, and returned the following special findings of fact:
“1. Do you find that the plaintiffs agreed with the defendant to furnish the millwork for the junior high school on time, and as and when needed by the defendant in the construction of said building? A. Yes.
“2. If you answer the above question ‘yes,’ do you find that the plaintiffs furnished all of said millwork on time, and as they had agreed? A. No.
“3. If you find that the plaintiffs did not furnish all of said millwork on time, do you find that the defendant was delayed thereby in completing said building? A. Yes.
“4. Do you find that the plaintiffs were notified by the architect in charge or his superintendent to deliver said millwork to said building? A. Yes.
“5. If you answer the above, question ‘yes,’ please state approximately when said notice was given. A. About September 1, 1922.
“6. If you answer question No. 4 ‘yes,’ then for how long thereafter, if any, did the plaintiffs delay the delivery of said millwork? A. Sixty days.
“7. Do you find that the president of the board of education, at the request of Brewster, urged plaintiffs to deliver said millwork? A. Yes.”
The court approved the verdict and rendered judgment in favor of defendant and against plaintiff for $1,575. Plaintiff appeals, and urges four assignments of error: First, requiring plaintiff on cross-examination to give amount of his former bid for the same work; second, permitting defendant to prove damages by estimating the period of delay and estimating the salaries and other cost and expense of such delays; third, failing to give certain general instructions to the jury; and fourth, talking before the jury about appointing a referee to save the time of the court.
When it is observed that plaintiff had already testified as to his estimates for the bid at the. January meeting of the board of school directors being substantially the same as those for the December meeting, with some few additions, there was nothing seriously wrong in inquiring of him on cross-examination more particularly about those estimates and the total thereof or the bid made, a month before. This was proper cross-examination.
The proving of damages by the defendant by estimating the ex tent of the delay in finishing the building and estimating the amount of such damages by enumerating the salaries of necessary parties kept on the job that much longer and the inefficiency of the carpenters in going from one job or one place to another on that account is seriously criticized, and some very strong and pertinent authorities are cited in that connection. Appellant finds fault with the method used to establish damages in this case and calls attention to the necessary uncertainty therein involved, but nowhere shows how defendants could have proceeded otherwise and properly.
“It is not a sufficient reason for disallowing damages claimed that a party can state their amount only proximately; it is enough if from proximate estimates of witnesses a satisfactory conclusion can be reached. It is sufficient if there is ‘such certainty as satisfies the mind of a prudent and impartial person.’ ” (17C.J. 761.)
“The rule against the recovery of uncertain damages generally has been directed against uncertainty as to cause rather than uncertainty as to measure or extent. In other words, the rule against uncertain or contingent damages applies only to such damages as are not the certain results of the breach, and not to such as are the certain results but uncertain in amount.” (17 C. J. 756.)
In a Kansas case where a purchaser of corn in the field for feed for his cattle was wrongly deprived of the use of such feed it was held:
“Where shocked com is purchased to be fed to a herd of cattle, and it is subsequently wrongfully destroyed by the vendor at a time when feed of that character cannot be obtained in that section of the country, the wrongdoer is liable, not only for the property destroyed, but also for the direct and immediate consequences of the wrongful destruction of the corn.” (Enlow v. Hawkins, 71 Kan. 633, syl. ¶ 2, 81 Pac. 189.)
In another case, where there was a failure to develop an oil lease as per agreement, the damages of necessity had to be estimated by those familiar with the oil business from the surrounding circumstances, and the court said:
“To say that the evidence in this case did not furnish a reasonable basis for estimating damages is to override the reasoning of all these cases. All the business of leasing lands for development is based upon the opinions of men engaged in the business as to the value of the tracts leased for that purpose and it is competent evidence; although it is impossible thereby in a particular case to show1 the exact amount of damage which has been suffered, it is sufficient to enable a jury to estimate the damages and to find accordingly.” (Wheeland v. Gas. Co., 92 Kan. 50, 52, 139 Pac. 1010.)
In the opinion in the case of Culbertson v. Cement Co., 87 Kan. 529, 125 Pac. 81, it was said:
“It is conceded that absolute accuracy of measurement could not be attained, but takingthe situation as it was, it appears-that the-.best .evidence obtainable was produced, and it further appears to have been sufficiently definite and reliable to warrant the findings made.” (p. 534.)
We think the estimation of .the reasonable expense of the delay occasioned a contractor by the failure of a subcontractor to deliver the .material he was to furnish at the time specified is competent evidence,to establish the extent of the damages sustained by such delay.
As to the failure of the court to give certain general instructions to the jury, we cannot say that such failure constituted error, however appropriate they may 'appear to be, without knowing just what were given which may have been intended to cover the same ground.
We see no prejudicial error in the remarks of the trial court as to the appointment of a referee. The remarks were possibly made to generate an increased speed in thé trial. On the whole record we 'fin'd nó 'reversible error. '
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a balance alleged to be due on the purchase price of 770 bushels of wheat. The defense was that plaintiff had been paid in full.
On the issues joined and the evidence adduced by the litigants the trial court gave judgment for plaintiff, and defendant appeals.
Briefly the facts were these: Plaintiff was a wheat grower in Meade county. Defendant has a number of grain elevators, one of which is located at Fowler in that county. On September 1,1921, plaintiff delivered 770 bushels of wheat to defendant for storage. Defendant issued two terminal warehouse receipts therefor, one of which reads, in part, thus:
“No. R 271. Terminal Warehouse Receipt. 143 bus. — lbs.
Wichita, Kan., Sept. 16, 1921.
“This is to certify that The Kansas Flour Mills Company, on the 1st day of September, 1921, received into storage at Fowler, Kansas, to be stored with grain of the same grade at the Kansas Flour Mills Company’s warehouse 143 bushels . . . wheat, which it will deliver to
Leroy Casper [plaintiff’s partner or tenant] upon surrender of this receipt and payment of all charges for storage . ' . . , etc.
“It is expressly agreed and understood that The Kansas Flour Mills Company may deliver any grade of merchantable wheat on the contract, providing,
“This receipt covers wheat stored under our local warehouse receipt No. 157, issued September 1, 1921, and if the wheat is sold to The Kansas Flour Mills Company after ninety days from that date a reduction of one and one-quarter (1%) cents per bushel will be allowed from the storage charges on account of the savings of the loading expense.”
In July, 1922, plaintiff surrendered the 'warehouse receipts to defendant’s agent at Fowler for the purpose of selling the wheat to defendant. In payment therefor checks for $592.67 were mailed to plaintiff, together with settlement sheets showing credits based on a price of ninety-five cents per bushel and debts for dockage and storage. Plaintiff wrote to the defendant that the wheat he was selling was of the crop of 1921, not of 1922, and demanded that the defendant pay him the difference in market price, which was thirty cents per bushel. This letter brought a response from one of defendant’s managers to the effect that the price paid was a fair market price at the time, and that it was all they could “at any time agree to pay.”
After the receipt of this letter, plaintiff again wrote to defendant. He testified:
“In the last letter in controversy before finally accepting these checks as part payment, I told them I was depositing these checks, indorsed under protest, and expected them to pay me the difference in the value of the wheat.
"Cross-examination:
“I had quite a little wrangling with Mr. Erbacher [defendant’s manager] through correspondence over the amount I received. I sent the checks back once, and they were sent back to me. They said that was all they would pay for the wheat.
“Q. Then you knew at the time you accepted these checks that they had— they had advised you prior to the time you accepted the checks that is what they considered a fair market price or they would pay? A. I didn’t take it all they paid — all they would pay; I took it as their letter stated they considered that a fair market price, which I controverted in reply immediately.
“I did not have any agreement with the defendant that I was to receive any particular amount for this wheat other than I have testified.”
Defendant’s demurrer to plaintiff’s evidence was overruled. Testimony was then introduced on defendant’s behalf, but nothing of controlling significance was developed thereby.
It is difficult to discern on what theory judgment was entered in plaintiff’s behalf. He deposited his wheat with defendant on written terms which defined the rights of the parties. Until he chose to sell the wheat, it was his to do with as he pleased. He might have had it redelivered to him in kind or he might have sold it to whoever was willing to buy at a price which would satisfy him. If he could agree with defendant on a price he could sell it to the latter. But he had to agree. He could not fix that price himself without the concurrence of his vendee. Nor did he have the right to keep and cash the checks without an unqualified acceptance thereof as tendered by the defendant. That he indorsed the checks “under protest,” while retaining and cashing them, detracted nothing from the legal binding force of such conduct. All this is elementary law. In 1 C. J. 562 it is said:
“The rule applies with full force and effect, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.
“The foregoing principles relating to acceptance in satisfaction find very frequent application in the case of checks and drafts. When a claim is disputed or unliquidated and the tender of a check or draft in settlement therof is of such character as to give the creditor notice that it must be accepted in full satisfaction of the claim or not at all, the retention and use thereof by the creditor constitutes an accord and satisfaction. And it is immaterial that the creditor does not return a receipt in full, or that he sends receipt ‘on account,’ or protests that he does not accept the tender in full satisfaction of the claim. If he is not willing to accept the check in full payment it is his duty to return it without using it.”
In Odrowski v. Swift & Co., 99 Kan. 163, 166, 162 Pac. 268, it was said:
“But in any-event the rule has been established in this jurisdiction that where there is a disagreement as to the amount of an indebtedness, the payment by the debtor of a less amount than that claimed affords a sufficient consideration for a release of the entire demand, although he admits his absolute and immediate liability for the amount he pays. (Neely v. Thompson, 68 Kan. 193, 75 Pac. 117.) And this view is in accordance with the later tendency of the courts, although there is still a division of judicial opinion on the subject. (1 R. C. L. 196.)”
In Minor v. Bank, 112 Kan. 666, 670, 212 Pac. 672, it was said:
“However, if the amount had been tendered as full payment of his claim, . and had been accepted in satisfaction of it, it would be an accord and satisfaction, although a much greater amount may have been due on his claim and although he may have protested that more was due.”
In Burger v. First Nat’l Bank, 124 Kan. 23, 257 Pac. 979, it was held:
“When parties to a transaction differ as to how it should be settled, one of them contending it should be settled on one basis, the other contending it should be settled on another basis, and one proposes the settlement on the basis he contends for and the proposition is accepted, it is in legal substance a settlement. The fact that the party accepting does so complainingly avails him nothing. The effective way for him to protest such settlement is to decline the offer of settlement.” (Syl. ¶ 2.) See, also, Harrison v. Henderson, 67 Kan. 194, 172 Pac. 875, and extended note thereto in 100 A. S. R. 386 et. seq.; Neely v. Thompson, 68 Kan. 193, 75 Pac. 117; Baugh v. Fist, 84 Kan. 740, 115 Pac. 551.
Against this controlling principle of law, it is contended in plaintiff’s behalf that there was no contract between the parties fixing the price of plaintiff’s wheat. But this contention does not meet this cáse. Of course there was no contract until plaintiff decided to retain and cash defendant’s checks. At that point, however, the law stepped in and imposed on plaintiff the consequences of a contract — of a binding acceptance. Nor can this result be avoided on the theory that the defendant, being a warehouseman, was bound to pay the highest market price or return the same amount of grain of like quality. Defendant’s obligation was governed by the terms of the terminal warehouse receipts; it was not bound to buy the grain at any price; nor was the plaintiff bound to sell, to defendant at any price. Appellee also suggests that the cause was determined in the trial court on issues of fact, which should be conclusive on appeal. But here the written instruments and the plaintiff’s own evidence foreclosed all controversy as to the controlling facts, and defendant’s demurrer to plaintiff’s evidence should have been sustained.
Reversed, with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one in replevin by a chattel mort- ' gagee to recover possession of an automobile. The defense was that the chattel mortgage was tainted with usury and therefore void. Plaintiff prevailed and defendant appeals.
Defendant purchased a Stutz car from the Hathaway Motor Company in Kansas City, Mo., June 16,1922. A contract was executed, reading in part:
“First party guarantees its new cars as per printed guarantee in regular factory catalogue. Second party hereby orders from first party the articles enumerated below at the prices and terms given. It is agreed that if the articles herein ordered are not taken the deposit will be forfeited to first party.
“Article 1 — Model K. L. H., 4 pass., Fleetwood:
Stutz, equipped with tire and cover................................ $3,275.00
By 1920 Stutz, 6 pass., free from debt.............................. 1,775.00
Balance ____'.......'........................................... $1,500.00
“Balance to be paid $250 every three months until balance is paid.
“Ins. fire and theft. $100. Ded. Col. K. L. D. H. 12238, Motor D 122438.
“This contract shall not be binding on party of the first part until it shall have been submitted to it at its office in Kansas City, Mo., and accepted in writing by one of its officers at that place.”
The defendant testified:
“The names signed to the contract are my name; one is ‘Bruce’; and one is ‘King.’ Mr. King was general manager of the Hathaway Motor Company and Mr. Bruce was a salesman. Mr. Bruce sold me the car and then referred the matter to Mr. King and the deal was closed with Mr. King. When I went to sign the papers there was $175.17 additional included. Mr. King said the Atlas Securities Company required this additional amount.”
The court in its judgment found that “the said personal property, the recovery of which is sought in this action, was offered to the defendant at a cash selling price of $1,500 or a time selling price of $1,675.17; that the addition of the sum of $175.17 to the cash selling price of $1,500 was legitimate and did not constitute usury.”
What constituted the consideration for the note and mortgage, and whether the car had been offered to defendant for a cash selling price of $1,500 and a time selling price of $1,675.17, were questions of fact which when considered and found by the trial court were conclusive. What happened is perfectly apparent. Bruce was the Hathaway salesman. He negotiated for a sale with defendant. The contract specified that it would not be binding until submitted to and accepted by the company at its office. The matter was referred to Mr. King for the company, who, according to the defendant, closed the deal, and who stated to the defendant when he executed the note and mortgage that the amount was 11,675.17. The note and mortgage were the last papers signed by the parties, the ultimate completed contract.
Ordinarily, the seller of an article may have a cash price and an increased credit price, and a bona fide sale at the latter price is not usurious, irrespective of whether the credit price is made up of the cash price plus a rate of increase which would exceed the legal interest rate or whether a note is given and the increase put in form of interest thereon, even if in excess of the legal rate. (See note and cases cited thereunder, 28 L. R. A., n. s., 102.) In Smith v. Kaufman, 145 Ark. 548, it was said:
“On a bona fide sale of merchandise on a credit at a higher price than the purchaser would have to pay for cash, no charge of usury can be predicated, for the element of lending and borrowing money is absent.” (p. 553. See, also, General Motors Accept. Corp. v. Weinrich, 218 Mo. 68; Huber Mfg. Co. v. Ellis, 199 Mo. App. 96.)
We are of opinion there was no showing of usury and that the trial court’s finding that the mortgage was valid was not incorrect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This'is an action on an insurance ’ policy against theft on an automobile. The trial court directed a verdict for del fendant. Plaintiff has appealed. "
It appears that one Jay Tripp, an oil operator residing at Wichita, purchased a Cadillac four-passenger phaeton automobile from the Nagelvoort-Stearns Co., the Cadillac company at Wichita, and gave a mortgage thereon to the seller to secure a part of the purchase price. A few months later Tripp had business in and about Concordia. He there borrowed from the Concordia State Bank $1,100, giving his note due on demand therefor and secured the same by a second mortgage on the Cadillac automobile. Later Tripp cashed a check for $325 at the Concordia State Bank, which went to protest. Then the plaintiff, C. E. Cory, cashier of the Concordia State Bank, went to Wichita and, in the name of the bank and based on the indebtedness and mortgage of Tripp to the bank, brought a replevin action, gave a replevin bond, and, no redelivery bond being given, got possession of the car. He gave the Nagelvoort-Stearns Co. his check for $868 and obtained an assignment of its lien on the car and drove it to Concordia. He did not procure a bill of sale of the car from anyone. On the day he reached Concordia, April 18, 1925, the insurance policy here in question was applied for and issued to C. E. Cory in the sum of $2,200, against loss by fire and theft. The car was stolen a few nights thereafter. There was evidence tending to show that, after the policy was issued and before the theft of the car, pláintiff had some understanding with the directors of the bank by which he was to take up the indebtedness of Tripp to the bank and to have the car, and that he did take up this indebtedness about three weeks after the car was stolen.
The policy contained warranties, made by the assured as a basis of issuing the policy, that he had purchased the automobile, secondhand, in April, 1925, at the actual cost to him of $2,500; that it was fully paid for by him, and was not mortgaged or otherwise encumbered. The policy also contained the provision:
“This entire policy shall be void ... if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership.”
The evidence disclosed the policy was issued on false warranties made by the assured; that plaintiff had not purchased the car at an actual cost to him of $2,500, or any other sum; neither had the car been fully paid for by him, and it was mortgaged, under two mortgages, and its title, or the right to its possession, was then involved in a replevin action which was 'undetermined.
The evidence further disclosed that, under the terms of the policy, the entire policy was void for the reason that the interest of the assured in the automobile was other than unconditional and sole ownership, and such interest as he had therein had not been noted on the policy and agreed to by the company.
The evidence further disclosed that plaintiff had no insurable interest in the automobile, or at least no insurable interest as owner. In fact the title to the automobile was still in Tripp, subject to the two mortgages and the replevin action above mentioned. If it can be said that the evidence sustains the theory, argued by plaintiff .without much to support it, that the car was sold by the Concordia bank to him in accordance with a provision in its mortgage authorizing it to sell the car at private sale, still plaintiff would have no insurable interest in the automobile for the reason that no bill of sale was given to him by the seller, nor were notices given, as was then required by our statute. (R. S. 8-117, 8-118.) See Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852, where the specific question was determined. These sections of the statute were repealed by chapter 87 of the Laws of 1927, but the rights of the par ties here turn on the statute in force at the time the policy was issued. Plaintiff argues that the statute should not be held to apply to the sale of an automobile by a mortgagee acting under the terms of a mortgage giving him the power to sell. Certainly the right of a mortgagee to sell a used automobile is not greater than the right of an absolute owner. Every reason why the statute applies to the sale by an owner applies with equal force to a sale by a mortgagee.
It was not error for the court to direct a verdict for defendant, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment requiring a sheriff to amend his return of an order of sale of real estate in foreclosure and confirming that sale according to the sheriff’s return as amended.
The salient facts were these: The defendant Ray Keller was the owner of forty acres of Jackson county land covered by a first mortgage held by the plaintiff Mrs. Fagerstrom, and by a second mortgage held by the Delia State Bank, and incumbered also by a third lien based on a judgment in favor of the Fidelity Savings State Bank.
Mrs. Fagerstrom brought suit to foreclose her mortgage. The second mortgage and the third lienholder were impleaded, and foreclosure was decreed and the property ordered sold to satisfy claims in the order of their precedence, viz.:
First, Mrs. Fagerstrom............................................ $1,500.00
Second, Delia State Bank......................................... 1,770.00
Third, Fidelity Savings State Bank................................ 1,034.46
Pursuant to an order of sale' the sheriff sold the property for $3,606.99 to Ray Keller, the judgment debtor, who paid for it on'the spot by two checks drawn on the Delia State Bank. Keller’s bid was just enough to satisfy the judgments in favor of the first and second mortgagees, together with interest and costs, leaving nothing to apply on the judgment of the Fidelity Savings State Bank. On the day of sale the clerk of the court receipted the docket for the sum of $3,606.99, and the attorney for plaintiff and the cashier of the Delia State Bank likewise receipted the docket for the several amounts due them under the judgment of foreclosure with interest to date of sale.
Within a few days thereafter the Fidelity Savings State Bank lodged objections to the sale, chief of which were these:
“1. That no sale of real estate actually took place as prescribed by law.
“2. That the transaction which took place on said date was in effect a payment by Bay Keller, one of the judgment debtors, of the judgment 'in favor of plaintiff and the judgment in favor of the Delia State Bank.
“4. That the judgment debtor was not authorized by law to buy said real estate at sheriff’s sale.”
Some time later the Delia State Bank filed a motion to direct the sheriff to amend his return so as to show that the sale was made to it. Issues of fact were joined on this motion and on defendants’ written objections to the sale, and the trial court made findings of fact, some of which must be set down here:
“(3) That at the time of said sale the cashier of the Delia State Bank appeared at said sale, prepared to bid the amount due on the first mortgage, with the amount due the Delia State Bank added thereto;
“(4) That immediately prior to said sale the cashier of said Delia State Bank, in order that the same might be more properly carried in said bank, made an arrangement with the defendant Ray Keller, the owner of said real estate, to bid the amount due on the first and second mortgages for said bank;
“(5) That said cashier failed to inform the sheriff of Jackson county, Kansas, at the time of said sale, of such arrangement, and upon the said Ray Keller making a bid for the aggregate of said two first mortgages, the taxes and costs, declared sale of said real estate to be made to Ray Keller, and made his return in accordance therewith;
“(6) That following out said arrangement, the cashier of said Delia State Bank caused said Ray Keller to issue checks to the clerk of the district court for the payment of the various sums included in said bid, drawn upon the Delia State Bank, which checks were thereafter honored by said bank, and paid;
“(7) That immediately after said sale, in addition to the giving of said checks, entry was made upon the books of the clerk of the district court of the payment of said sums by Ray Keller, and in turn, said clerk issued his check to the plaintiff and the Delia State Bank respectively, for the payment of the amount due each;
“(7%) That part of the arrangement between the said Moore [cashier] for the Delia State Bank, and the defendant Ray Keller, was that Ray Keller was to repurchase said real estate after being bid in by the said Delia State Bank.
“(8) That at the time of giving said checks by the said Ray Keller, he had no funds in the Delia State Bank, but the same was to be provided for by the said Ray Keller thereafter making a mortgage in the sum of $2,000 to the Delia State Bank, and another for the balance of said sum, whereby the Delia State Bank was to dispose of said 2,000-dollar mortgage, and carry the other one, so that an excess loan might not be shown upon the books of said bank;
“(10) The court further finds that the Delia State Bank was in truth and in fact, the purchaser of said real estate at said sheriff’s sale.”
Pursuant to those findings the court directed the sheriff’s return to be amended so as to show that the Delia State Bank was the purchaser at the sale, instead of Ray Keller, and the sale was confirmed accordingly.
The Fidelity State Bank appeals, contending that the evidential circumstances prove that the Delia bank loaned money and credit to Keller with which to make the purchase of the land, and as Keller was the judgment debtor the legal effect of the payment of such purchase price by him was simply to pay his adjudicated indebtedness to the first and second mortgagees — with the ultimate consequence that the appellant bank’s judgment remains a primary lien on the forty acres involved. Counsel for appellant say:
“This is another case in which a bank sought to do something for the purpose of making things look like what they are not. . . . There is no doubt about the power of the court to order an officer to amend his return to state the truth; but an application to the court to require an officer to amend his return to state an'untruth is believed to be unprecedented.”
But to adopt that view, this court would have to disregard the findings of the trial court. And that, of course, we could not do unless those findings were not supported by evidence. But it has hardly been contended that there was no testimony to support the findings. They paraphrased the evidence of the cashier of the Delia bank. However improbable the cashier’s testimony may seem under the critical and unsympathetic scrutiny of appellant and its counsel, it is useless to argue that it did not prove, if true, that the bank intended that Keller should buy the land for the bank, and as its agent, and not for himself in the first instance, and that the bank did not intend to loan Keller $3,606.99 to purchase it. , The cashier’s testimony did tend to show that while the Delia bank did not have a very clear and businesslike project completely planned in advance, it did have a general purpose to sell the land to Keller, and have him give a first mortgage for $2,000 which could be placed with some money loaner or investor and to take a second mortgage to itself for the balance of what the land should cost at the sheriff’s sale. In that view of this testimony, which the trial court accepted as true —and it is not an incredible story — the findings of fact will have to stand, for the trial court, not the supreme court, is the fact-finding tribunal. (Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 457-461, 239 Pac. 974.)
Another consideration which properly enters into the matter of confirming a sale of real estate in foreclosure is a due regard for the principles of equity, and these, it seems to us, would be violated by the result for which appellant contends. All the lienholders were impleaded, and their interests and priorities were determined by the judgment. All were advised of the sale as ordered. None was precluded from bidding, nor is it hinted that there was any sharp practice by anybody. Appellant stayed away from the sale because it knew there was-no chance for the property to sell for enough to pay the prior liens and some surplus to apply on its adjudicated claim. And notwithstanding the respectable authorities cited by appellant, giving instances where a prior incumbrancer or senior judgment creditor, through some inadvertent fumbling on his part, found his superior right extinguished or supplanted by the inferior right of another, it would not be equitable here to hold that there was no sale, and that the Delia bank merely loaned Keller money to pay off the judgment claims of the first and second judgment creditors. Certainly the bank had no intention to do anything of that sort. The case at bar does not differ in principle from that of Stetson v. Freeman, 35 Kan. 523, 11 Pac. 431, where the sheriff was required to amend his return under a more complicated set of facts and where the equities were not so one-sided as they are here. In Pool v. Gates, 119 Kan. 621, 625, 240 Pac. 580, it was said:
“Equitable matters, as distinct from legal questions as to the regularity of the sale, may be considered by the court in passing upon a motion to confirm a sale.”
There is a suggestion in appellant’s brief that the Delia bank had Keller bid in the land because it wished to avoid the making of an excess loan. We think not. If it did, it took a queer way to avoid it — an ineffective way if the circumstances were to be interpreted as advocated by appellant. Nor can this court discern anything in the entire transaction giving just rise to some suspicion that there was something sinister about the Delia bank’s course of conduct which was desirable to cover up. The transaction has none of the earmarks of a scheme to deceive the bank commissioner, if the cashier’s testimony is given full credence, as must be done, since the trial court believed it.
There is no plain palpable error in the record which would permit this court to disturb the judgment. It is therefore affirmed.
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The opinion of the court was delivered by
Burch, J.:
The widow of a deceased workman sued the workman’s employer for compensation. Judgment was rendered for defendant, and plaintiff appeals. The principal question is whether the injury which occasioned the workman’s death arose out of his employment.
The Reice Construction Company was engaged in fulfilling a contract to dig a ditch in what is known as the Fairfax district in Wyandotte county. This district lies between the bluffs which mark the northern and eastern limits of the city of Kansas City, and the Missouri river. Adjoining the northern boundary of the city is the right of way of the Missouri Pacific railroad. The right of way is 100 feet wide, and the track is laid in the center. Hallock road, which is virtually a prolongation of Fifth street in Kansas City, crosses the railroad right of way and extends north through the district. The direction of the railroad at the highway crossing is from northwest to southeast. Just north of the railroad track a road turns off the Hallock road and takes a course between the track and the north boundary of the right of way. The ditch was north of the right of way, and its course was substantially parallel with the north boundary of the right of way. The construction company’s contract embraced ditch digging, dike building, road grading, and similar work. Ditching was done with a ditching machine, operated by a foreman, Jacobs, and a crew of workmen. Sellers, a member of the crew, was a laborer who did whatever he was directed to do about the work. At the time the accident occurred the ditch had been dug part way across Hallock road, the machine stood in the road, and traffic on the road was obstructed.
Work on the ditch commenced at seven o’clock in the morning and the foreman usually arrived from fifteen to thirty minutes ahead of time. He lived in Kansas City, and came to work in his own automobile. When coming to work on November 20, 1923, he drove his car northward across the railroad track, then proceeded in a northeasterly direction, and parked his car at a point thirty or forty feet from the railroad track and within the north portion of the curving junction with Hallock road of the road running down the railroad track. Shortly before 1:25 p. m. Sellers observed a truck loaded with timbers approaching from the south on the Hallock road. The timbers were to be delivered to a contractor other than the construction company, and in order to do so, it was necessary for the truck to turn into the road beside the railroad track. Transportation of the timbers bore no relation to the work in which the construction company was engaged. Sellers feared that when the truck made the turn the timbers might not clear the foreman’s car. He went up to the elevated platform of the ditching machine on which the operator stands, told the foreman of his apprehension, and asked for the key to the car, so he might move it. The foreman did not believe the car was in any danger, but finally yielded to Sellers’ request and gave him the key. At the time, the car was from fifty to seventy-five feet from the ditching machine. Sellers got off the machine, went to the car, unlocked it, and drove it upon the railroad track, where it was struck by a train. The car was wrecked and Sellers was killed. The sketch on the following page will assist in visualizing the scene of the accident.
The statute provides for compensation for “personal injury by accident arising out of and in the course of employment” (R. S. 44-501), “in the course of the employer’s trade or business on, in or about . . . engineering work” (R. S. 44-5051, which includes excavating when power machinery is used (R. S. 44-508). There is nothing in the record to indicate that the danger zone of the ditching work in progress when the accident occurred, or any other work the construction company contracted to do in the Fairfax district, ex tended southward beyond the north limit of the railroad right of way, or what would be the north limit of the railroad right of way extended across the Hallock road. Sellers was employed to do the ■construction company’s work, not to look after Jacobs’ car, and the course of his employment was broken by his voluntary withdrawal to do an act which bore no relation to his employment and which took him away from it. Leaving these obstacles to recovery of compensation at one side, the accident did not arise out of the employment.
The phrase “arising out of ... • employment,” suggests casual relation between employment and injury. The verb “arise” has a meaning which takes note of circumstances viewed as results, and the prepositional phrase “out of” has a meaning of “from (something) as a cause.” (Oxford English Dictionary.) Prompted by the suggestion, the courts frequently define the phrase by stressing the element of causation. Thus, in McNicol’s Case, 215 Mass. 497, the court said:
“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is ■employed to perform. It ‘arises 'out of’ the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a casual •connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out ■of’ the employment. But it excludes an injury which cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. ,It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” (p. 498.)
This definition was not proposed as accurately including all cases ■embraced within the workmen’s compensation act, nor as excluding with precision all cases not within the terms of the act. The court was not content to say that an injury arises out of employment when ■a casual connection between employment conditions and injury is .apparent. Many different things, conditions, or circumstances usu ally contribute to production of an effect. The law regards legal cause only. Employment, although - a -factor, may not have been a substantial factor in bringing about injury, and in that event compensation is not recoverable. Therefore, after proposing the test of some casual relation, the court qualified it by introducing the old standby, “proximate cause.” There may be liability, however, when, employment is not proximate cause. The indispensable factor without which injury would not have occurred, and hence the legal and logical cause-, may have been the workman’s own negligent conduct.. In such a case, other conditions being satisfied, his injury is compensable. In the case of Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, it was shown that compensation is not restricted to-cases of injury flowing from 'some hazard peculiar to the employment. It is sufficient if the hazard was incidental to the employment. The result is, interpretation of the statute in terms of proximate-cause is inadequate, and leads to confusion. To avoid these embarrassments, “arises out of” should be regarded as establishing the-limit of protection afforded by the compensation act, rather than as relating to operative cause of injury. The statute itself distinguishes-between cause of an injury and what it arises out of:
“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 this act.” (R. S. 44-501.)
The hazards to which a workman is exposed are numerous. Some-spring from the nature and conditions of the employment. A miner-strikes his face against a piece of slate hanging from the roof of the-mine (Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9). Others spring from sources unrelated to the nature and conditions of the employment. In the course of employment an epileptic workman, falls in a fit and is burned by hot pipes (Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863). The real question involved in such cases is whether the risk was one within the purview of the statute and, generally speaking, it is sufficient if the injury 'result from causes-originating within the employment, considered as a protected field. If in any case the cause of injury takes its rise from something extraneous to the employment, the injury does not arise out of the-employment, and recovery should.be denied on that ground, not outlie ground that the employment is not proximate cause. The problem is usually solved, however, by invoking the doctrine of proxi mate cause. A very searching and very helpful examination of that doctrine may be found in Green’s "Rationale of Proximate Cause” (1927).
Applying the test of causal relation, the injury to Sellers did not arise out of his employment. It is probable to a high degree of certainty that Sellers would not have been struck by a Missouri Pacific train on the Hallock road crossing at 1:25 p. m. of November 20, 1923, while he was moving Jacobs’ car, if he had not been employed by the construction company as a member of the ditching crew working in the Fairfax district. The employment, however, does not explain how it came about that Sellers was struck by the train. Given the employment, the accident must still be accounted for. Given the accident, no previous observation of the laws of nature, or previous experience of mankind, would lead the mind backward to employment as a member of the ditching crew as its efficient cause. The employment was simply a fact in the complete history of the accident; it was not a factor of appreciable influence in producing the accident. A falling barometer indicates a coming storm; but antecedence does not of necessity indicate causal relation. Air consists chiefly of nitrogen and oxygen, and is helpful in lighting a wood fire in the grate. Nitrogen is an antecedent, but it is not a cause of the lighting. On the other hand, it retards combustion, which is supported by the oxygen. In this instance, the duty involved in the employment was a constraint upon Sellers, tending to keep him at work in a place of safety.
Applying the test of extent of protection afforded by the statute, Sellers’ injury did not arise out of his employment. The construction company was not concerned about how Jacobs came to work or where he left his car, and was not concerned about the movement of the truck loaded with timbers, or whether the timbers might strike the car. In his capacity as employee of the construction company, Sellers was not concerned about any of these matters. They had no connection with his employment. The fatal occurrence originated in the operation of the truck under conditions which seemed to Sellers to threaten Jacobs’ car, and prompted him to take measures to protect it. So prompted, he obtained the key of the car, unlocked it, put it in motion, and drove it on the railroad track. The train did the rest. The entire episode was foreign to Sellers’ employment and beyond the limit of the protection afforded by the workmen’s compensation act.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of obtaining money by false pretenses and appeals.
According to the evidence for the state, the defendant was one of three men who very cleverly imposed on the confidence of one C. P. Hale, whereby they fraudulently induced him to make repeated investments in a certain oil and gas lease of little or no value.
1. The first error urged is that defendant never had a preliminary examination and had not been bound over for trial upon the charges set forth in the information and that his plea in abatement alleging these facts should not have been overruled. However, this plea contained an admission that a complaint had been filed against him and two codefendants, that a warrant had issued thereon and that he had entered into a recognizance for his appearance before an examining magistrate pursuant thereto, and that one E. E. Enoch presumed to qualify and serve as an examining magistrate and judge pro tem. of the city court of Wichita, and that defendant was given a “pretended preliminary examination on the charge of obtaining money by false pretenses as set forth in said warrant,” following which Enoch, the “pretended examining magistrate,” bound him over to appear in the district court for trial. In this plea in abatement, also, the record of the examining magistrate was incorporated by reference, so the entire matter was before the district court. There was no prejudicial variance between the charge as originally stated in the complaint and warrant and- that stated in the amended information. Both sufficiently apprised the defendant that the state’s legal machinery was in motion against him and his codefendants for the grievous offense of swindling C. P. Hale out of the large sum of $28,500 by a threadbare confidence game of false pretenses. On that subject there was a thorough airing of the main features of the offense at the preliminary examination, and the magistrate was. authorized to bind over defendant for whatever crime or crimes the examination showed him to be probably guilty of, whether specifically set out in the complaint and warrant or not. (R. S. 62-621; State v. Shaw, 72 Kan. 81, 82 Pac. 587; State v. Handrub, 113 Kan. 12, 213 Pac. 827; State v. Miner, 120 Kan. 187, 190, 243 Pac. 318.)
Touching the official character of the examining magistrate, this court has repeatedly condemned the practice of switching the inquiry in a criminal case from that of the guilt or innocence of the accused to that of the magistrate’s title to his office (Hancock v. Nye, 118 Kan. 384, 234 Pac. 945; State v. Billings, 120 Kan. 162, 164, 242 Pac. 136), and its inexcusable recurrence can have no other effect than to suggest to us at the outset the probability that we have to deal with another appeal quite devoid of merit.
2. Defendant next attacks the amended information, which went into much detail in narrating the facts of the crime. The large sum of $28,500, of which defendant and his associates deprived the prosecuting witness, was not obtained in one lump sum, but in various sums which eventually totaled $28,500. They induced Hale to invest in the lease by the false pretense that they too were making similar investments in it. They induced him to serve as title holder of the lease and then caused spurious telegrams to be sent to him pretending to offer gradually increasing bids for the lease, and then pretended to disagree on the advisability of accepting some one of these pretended bids, thereby inducing him to buy the interests of first one and then another of the coconspirators. The fraudulent scheme was essentially the same from first to last, although details were added to the tissue of false pretenses as the perpetration of the fraud on Hale progressed.
It seems to be defendant’s contention that he should have been prosecuted on separate and independent counts for each particular sum he and his codefendants obtained from Hale, viz.: Count one, for the first sum of money, $3,500, they got from Hale; count two, for the next sum, $5,000, so taken; count three, for the next sum, $7,500; count four, for the next $6,000; and count five, for the final sum, $6,500. It is possible a prosecution and conviction of defendant on five separate counts with separate and consecutive sentences thereon might have been upheld. But the state’s theory of the case was a rational one, and one well supported by the evidence —that Robinson and his associates abstracted all these sums of money from Hale pursuant to a single definite .plan, and that the repeated receipts of these sums of money were but incidents of one continuing offense.
In Beasley v. State, 59 Ala. 20, it was held that the obtaining of different quantities of merchandise on separate occasions several days apart by the continued practice of the same false pretense constituted one criminal offense and was not a case for' election. In Rosekrans v. People, 10 N. Y. (3 Hun) 287, 292, 293, the court had to determine whether the counterfeiting of separate written instruments which pretended to be a constable’s verified account against Saratoga county for official services constituted one or several offenses of forgery. It was held that the bill or account itself, the signature to the affidavit, and the signature to the jurat or certificate, constituted but one crime of forgery. The court said:
“The public prosecutor may, however, allege in the indictment several felonious acts, which, in themselves separately considered, are distinct offenses, so far as they are essential portions of one continuous transaction or connected charge, and collectively constitute but one offense.”
See, also, State v. Richmond, 96 Kan. 600, 152 Pac. 644; State v. Moore, 86 Minn. 422, 61 L. R. A. 819 and note; 31 C. J. 685, 770, 771.
The information was in fact a bill of particulars, but certainly ■defendant had no just complaint thereat, although the county attorney might thereby have been handicapped in the prosecution of the charge if he had been less sure of the facts and th*e evidence and witnesses available to prove them. The motion to quash was properly overruled.
3. Error is also assigned in overruling defendant’s objection to the introduction of evidence. This objection was based upon the fact that one of the codefendants, George Marquess, was acquitted on the same charge, and the other defendant, George W. Herrman, was never brought to trial, and the charge against him was eventually dismissed. Defendant asserts (with what basis of fact is neither clear nor important) that the county attorney hesitated to bring Herrman to trial because he was a banker, and public confidence concerning bankers had been greatly shaken in that locality owing to delinquencies of a few persons engaged in that vocation. Be that as it may, the acquittal of Marquess and the dismissal of the ■charge against Herrman were not good grounds of objection to the introduction of evidence against this defendant. (State v. Bogue, 52 Kan. 79, 34 Pac. 410.) Defendant invokes some rule that requires a dismissal of a charge of conspiracy against one defendant when his codefendant is acquitted on the same charge. (Feder v. United States, 257 Fed. 694, 6 A. L. R. 370.) This rule is of no significance in this jurisdiction, since we have no crime of conspiracy as such. With us, the term “conspiracy” is merely a matter of denunciatory phraseology. It means an agreement of • evil purpose. Criminal culpability only begins when some overt act is committed or attempted to carry that evil purpose into effect.
4. Another error is based upon the trial court’s ruling on defendant’s application for a continuance. On cross-examination of defendant, some facts were brought out concerning a business transaction in which defendant had been engaged. It is spoken of in the record as the “Radford deal.” Defendant desired a continuance until he could interview certain witnesses who might know something concerning this “Radford deal.” The court offered to call the clerk of the court and have subpoenas issued for whatever witnesses defendant desired, and to have the sheriff serve these subpoenas between the hour of adjournment and the hour when court would reconvene the following morning. Defendant did not take advantage of that privilege, nor did he show either then or later or in presenting his motion for a new trial what the witnesses would have testified to. So prejudicial error cannot be predicated on this assignment.
5. Error is also assigned on the trial court’s ruling on defendant’s demurrer to the evidence. But the record abounds with evidence to show that Robinson, Marquess and Herrman deliberately planned and executed a scheme to swindle C. P. Hale out of a large sum of money by selling him an interest in a 2,000-acre oil-and-gas lease of the merely speculative value of $1 to $3 per acre, and that pursuant thereto they obtained from him sums of money aggregating $28,500, and did it, too, by false and fraudulent pretenses of its value and by inducing various persons to send to Hale pretended and fictitious offers and bids for the lease. It is useless to narrate the details of this nefarious transaction. The information occupies ten closely typewritten pages of the record, and the state’s evidence to prove the charge was wanting in no particular. It is suggested that a mere expression of opinion of the value of the lease would not constitute an element in the commission of the crime of obtaining money by false pretenses. Quite true. But we have no such case to consider here.
It is suggested that “Hale was not a novice in the oil game.” To this court a patient reading of the record portrays a want of sophistication and a credulous simplicity on the part of the prosecuting witness which is really astonishing; but however that may be, we could not declare a rule that the penal offense of obtaining money by ■false pretenses only applies where practiced on unsophisticated persons, and that all others are fair game. (State v. Nash, 110 Kan. 550, syl. ¶ 4, 204 Pac. 736.) The demurrer to the evidence was properly overruled.
6. Another error slightly pressed relates to the trial court’s refusal to give additional instructions to the jury. After it had deliberated for some time, the court called the jury and inquired how they stood. The foreman said, “We stand eleven to one.” Then the court asked if there was anything in the way of additional instructions he might give that would assist them. The foreman replied:
“Only things I can think of is whether Mr. Hale knowing what he was going into with his eyes open all the time would make any difference.”
The court then told the jury that the point inquired about was covered in instructions numbered 21, 22, 23 and 24. An examination of these shows nothing lacking to correctly guide the jury’s deliberations.
7. Defendant also complains of the admission of testimony touching the fictitious offers and inquiries for the lease which were insti gated by defendant and his coconspirators, Marquess and Herrman, to further their evil purpose of inducing Hale to make additional investments in the lease by the pretense that it was constantly increasing in value. That evidence was competent. Nor was it necessary for the state to prove that every such offer, bid or inquiry was fictitious and prompted by the coconspirators. It was quite enough when shown that any one of them which induced Hale to put his money into the lease was fictitious and prompted by the defendants for that evil purpose. (State v. Hetrick, 84 Kan. 157 and citations, 113 Pac. 383; State v. Mathes, 108 Kan. 488, 492,196 Pac. 607.)
8. Error is assigned on the permission given the state to go into the extraneous “Radford deal.” It was competent, however, since defendant gave testimony concerning it himself and because his main objection to it was merely want of time to get witnesses from Augusta to testify further concerning it. At the hearing of the motion for a new trial nothing was offered which would have warranted a continuance on account of the disclosure of the “Radford deal,” nor to explain it so as to exonerate Robinson concerning it. It was competent under the rule concerning the admissibility of similar offenses. (State v. Wahl, 118 Kan. 771, 236 Pac. 652.) It is suggested, however, that no false pretense was shown in this “Radford deal.” If so, then it is quite useless to waste time and book space in its discussion, for its admission would have been immaterial unless defendant had been misled or prejudiced thereby, and no showing to that effect is disclosed:
9. Complaint is also made against the general attitude of the trial court. It is asserted that the trial judge assumed a boisterous and belligerent manner towards the defendant, and otherwise disclosed prejudice against him. The record does not support this contention. This is a complaint which should not be brought in this court against a trial judge, without first presenting it to the trial judge himself, at a timely presentation of the motion for a new trial, and in its presentation to him it should be backed by affidavits or other sworn testimony. Otherwise there is nothing available upon which such a complaint can be reviewed on appeal. In the tedious grind of a trial, judges, being human, may sometimes show testiness or temper; but long ere the motion for a new trial is up for consideration their equipoise will be. regained, and defendant’s counsel may then talk to the court as man to man on the possibility of prej udice because of the judge’s show of temper in the presence of the jury. As said in American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 Pac. 215, unless counsel for defendant, in presenting their motion for a new trial, respectfully but courageously remind the trial judge himself of such incidents it is useless to air them in the supreme court, for no reversible error can be predicated thereon— simply for want of an official record to chronicle the incidents complained of.
The other matters urged in behalf of defendant have been carefully considered, but they suggest nothing requiring further extension of this opinion; nor does anything appear in this case which suggests the possibility that justice may have miscarried.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by John C. Falk to cancel and set aside a deed made by his uncle, Albert Falk, December 1, 1925, to his niece, Rosia Falk Fulton, for the reason that it was made in violation of an oral agreement of the grantor with the plaintiff, confirmed by the subsequent execution of a will by the uncle. The grantor and grantee of such deed were parties defendant and by their answers raised questions involving the three-year statute of limitations, the statute of frauds, the statute of trusts and powers, and the good faith and innocence of the purchaser. The grantor expressly denied the making of the oral contract alleged and the making of the will in fulfillment of any contract whatever. The trial court made findings of fact, including them in the journal entry, and rendered judgment thereon in favor of the plaintiff, setting aside the deed except in so far as it conveyed the life estate of the grantor and decreed the plaintiff to be the owner of the remainder in fee after the death of the grantor. The defendants appeal.
The findings of fact made by the trial court will serve as the best statement that can be given of the necessary facts involved. 'They are as follows:
“1. Prior to 1890 Charles H. Falk, who was the father of the plaintiff herein, and a brother of the defendant Albert Falk, held the title to the land in controversy; and on February 10,1890, he conveyed said land to Emilia Hottewitz as security for a loan of money; and on November 11, 1895, the said Emilia Hottewitz, at the instance of Charles H. Falk, conveyed said land to the plaintiff herein.
“2. For a number of years, both prior and subsequent to these conveyances, Charles H. Falk and Albert Falk had lived on the north half of section 22, township 23, range 19, Edwards county, Kansas, and had farmed the same together, and Albert Falk had contributed some money towards making improvements thereon.-
“3. Shortly prior to July, 1911, Albert Falk, desiring to remove to the state of Texas, made a claim upon the plaintiff herein for work and labor which he had performed, and also claimed an interest in the north half of section 22, township 23, range 19, in Edwards county, Kansas, and on July 28, 1911, an oral agreement was made between John C. Falk and Albert Falk whereby a settlement was made of all controversies between them, and it was agreed that John C. Falk should convey the land in controversy to Albert Falk, and Albert Falk at that' time agreed that he would either deed the land or make a will so that at his death the same should again become the prop-’ erty of John C. Falk; and on July 28, 1911, John Falk conveyed said land, being the northeast quarter of section 22, township 23, range 19, Edwards county, Kansas to Albert Falk, and at' such tim-e said land was of the value of 87,200.
“4. About the year 1912 Albert Falk went to live with his niece, Minnie Feese, in the state of Texas, where he continued to reside until the year 1921.
“5. On October 24, 1912, Albert Fall:: executed a mortgage on said land t'o Fidelity Trust Co., which mortgage is recorded in the office of the register of deeds of Edwards county, Kansas, in book 3, pages 159-162.
“6. On June 21, 1922, Albert Falk and John Falk and wife executed two mortgages to the Warren Mortgage Company, both of which are recorded in the office of the register of deeds of Edwards county, Kansas, one being in book 9, page 31, and the other in book 9, page 337.
“7. On the 24th day of May, 1917, said Albert Falk executed a deed to said land to Minnie Falk Feese and said deed was filed of record in Edwards county, Kansas, on July 12, 1917, and on July 31, 1921, the said Minnie Falk Feese executed a deed to the said land to Albert Falk.
“8. In the year 1921 Albert Falk returned t'o Edwards county, Kansas, and made his home with the plaintiff herein. During the month of September, 1922, he suffered a stroke of paralysis, and on September 22, 1922, he exeouted a will devising the land in controversy to the plaintiff, John C. Falk.
“9. In the year 1925 the said Albert Falk went to live with his niece, Rosia Falk Fulton, in Ohio, and on December 1, 1925, executed a deed conveying said land to her upon an agreement upon her part that she would care for him during his lifetime, and provide for him a decent burial at his death, and the said Rosia Falk Fulton has since said time cared for the said Albert Falk.
“10. The said Rosia Falk Fulton had no notice or knowledge at or prior to the time of the making of the said agreement and the conveyance of said land to her of any contract' or agreement between John C. Falk and Albert Falk relative to said land.”
The first point of error discussed by the appellants is that the judgment is not supported by the findings of fact, and they apply the rules and requirements under the statute of frauds and the statute of trusts and powers. Of course both these statutes require some contract or memorandum in writing before any interest in land or the creation of a trust can be valid or enforceable. The appellants argue that the' execution of the will by Albert devising everything he owned to his nephew John, eleven years later than the time of the alleged oral agreement, is not a compliance with the requirements because of the long period intervening and because the will does not recite or refer to the oral agreement. We do not think the rules or the cases cited go that far.
“The memorandum of the contract required by the statute of frauds may be made subsequently to the making of the contract itself, and at any time before an action is brought on the contract.” (27 C. J. 263.)
“Although thirty years has elapsed since the time of the alleged agreement, considerable testimony was produced tending strongly to show that the agreement was made and was frequently spoken of to neighbors by the parents of plaintiff. It is said that such agreements must be shown by convincing proof, but it is enough if, upon substantial evidence supporting the agreement, the trial court has determined its sufficiency.” (Lyons v. Lyons, 114 Kan. 514, 518, 220 Pac. 294.)
The general authorities cited by the appellants contain exceptions which apply to the facts in this case. The reference to 25 R. C. L. 592 applies only where the possession of the will is retained by the promisor.
“If the will makes no reference to the oral agreement and its possession is retained by the promisor, though it may have been made in pursuance thereof, it will not constitute a sufficient written memorandum thereof to take the agreement out of the operation of the statute.” (25 R. C. L. 592.)
Likewise, the reference to 27 C. J. 259, where it is stated a will is not a sufficient memorandum in writing if it does not coincide with the oral contract.
“A will may be a sufficient memorandum; but not where it does not contain the-contract in question, or does not coincide therewith, or where it fails to refer to, or show a connection with, the agreement or bargain in question.” (27 C. J. 259.)
Elsewhere in the same articles the question of identity of subject matter is considered. There must be no ambiguity or uncertainty in the coinciding of the writing with the oral agreement as to parties, property, or kind of estate. In this case, ás shown by the evidence and the findings, all these matters completely coincide. There is no confusion or inconsistency between the terms of the oral agreement and the will. We find no authority, where the written memorandum fully coincides with the oral contract and is. delivered to the grantee or devisee, which requires that the deed or will expressly refer to the making of the previous oral agreement. Our own state has frequently held that wills were sufficient to take the case out of the statute where no refei’ence was made therein to the oral contract. In the case of Nelson v. Schoonover, 89 Kan. 388, 392, 131 Pac. 147, it was said: “The will itself has been treated as such a memorandum of the agreement as to satisfy the statute.” In the case of Nash v. Harrington, 110 Kan. 636, 205 Pac. 354, the language of the will is set out and contains no reference to an oral contract, and it was held to be sufficient for the same purpose as far as the will was concerned, but the plaintiff in that case failed for a different reason. (See, also, Newton v. Lyon, 62 Kan. 306, 62 Pac. 1000; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Arnett v. Wescott, 107 Kan. 693, 193 Pac. 377.)
Counsel for both parties refer to the case of Nelson v. Schoonover, supra, as being more or less applicable to the case at bar. We think it is quite applicable and really decisive of this case.
“An oral agreement- between husband and wife that she will make a will leaving to him all the property owned by her at the time of her death, both real and personal, in consideration of real estate owned by him being conveyed to her, is .rendered enforceable, notwithstanding the statute of frauds, where in accordance with its provisions the title to land paid for by the husband is taken in the wife’s name, and she makes such a will, and thereafter in reliance thereon he expends labor and money in improving the property.” (Syl. ¶ 2.)
“A will executed under an agreement founded upon a valuable consideration is contractual as well as testamentary. In the latter aspect it may be revoked without the consent of the beneficiary, but not in the former. . . .” (Syl. ¶ 3.)
“A will duly executed, in pursuance of an agreement based upon a valuable consideration, becomes itself, in a sense, an enforceable contract. The. testator cannot, by making a later will, escape the obligation confirmed by the first one.
. . . The delivery of the will to the beneficiary has been treated as of importance in emphasizing the contractual feature of the transaction . . . but has been said not to be essential.” (p. 392.)
“Neither the statute of frauds nor the statute of trusts and powers is a bar to the enforcement of an oral agreement to make a will when it has been fully performed by one of the parties, following the rule announced in Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713, and Smith v. Cameron, 92 Kan. 652, 141 Pac. 596.” (Meador v. Manlove, supra, syl. ff 4.)
If there were any serious question of the will being sufficient in itself to take this case out of the statute of frauds and the statute of trusts and powers, authorities are abundant, as cited by appellee, to give the plaintiff herein an equitable and enforceable contract by virtue of full compliance on his part. (Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. 556; Ackerman v. Alden, 123 Kan. 116, 254 Pac. 322.)
It is contended by the appellants that this action is in effect one to enforce an implied trust and therefore there must be allegation and proof of fraud or deceit, but such does not seem to have been the holding of the trial court or to be reasonably inferred from the pleadings. The findings show that the plaintiff gave his uncle an absolute deed in settlement of all differences and with the distinct understanding that the uncle would devise the land back to him. When the uncle made such a will and delivered it to the plaintiff it became an executed contract, irrevocable by the uncle, and the statute of frauds would not apply. (Hill v. Maxwell, 71 Kan. 72, 79 Pac. 1088; James v. Manning, 79 Kan. 830, 101 Pac. 628; Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062.)
This action, under the evidence and the findings, did not accrue until the uncle made the will. Perhaps some other kind of an action could have been instituted during the time the uncle failed to comply with the agreement by executing his will, but certainly not this kind of an action, nor against these parties. There was no occasion, after the will was made, to do anything to protect the rights of the plaintiff until the deed was executed to Mrs. Fulton, which was only a few months before the commencement of this case.
It is said the grantee, Mrs. Fulton, was a bona fide and innocent purchaser for value, agreeing to support and maintain the grantor during his life and furnish a respectable burial. We do not understand that such is a valuable consideration when against the interest of other or third parties. (Morris v. Wicks, 81 Kan. 790, 106 Pac. 1048.)
“A conveyance in consideration of the future support of the grantor for life, though a valuable consideration in the ordinary sense, is not such a valuable consideration as will entitle the grantee to protection as against secret equities binding the land in the hands of the grantor.” (27 R. C. L. 696. See, also, 39 Cyc. 1698.)
We think the evidence, though conflicting as to the making of the oral agreement, fully supports the findings, and the findings justified the trial court in rendering the judgment it did in favor of the plaintiff and against the defendants.
“Rule followed that the trial court’s findings of fact, when based upon sufficient though disputed or conflicting testimony, will not be disturbed on appeal.” (Meador v. Manlove, supra, syl. ¶ 6.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by an administrator, with the will annexed, against the former executor of the estate under the will, and a bank of which the executor was president, to recover moneys of the estate alleged to have been wrongfully used by the former executor and bank officers for the benefit of the bank. Plaintiff recovered judgment against the former executor, from which no appeal has been taken. At the trial the court sustained the bank’s motion for judgment in its favor on the pleadings and. opening statement of counsel. Plaintiff has appealed. The sole question before us is whether plaintiff’s action against the bank was barred by the statute of limitations.
S. T. Slabaugh, a resident of Chase county and the owner of considerable real and personal property, died in April, 1921, leaving a will by which he authorized and directed his executor to sell, within two years, all his real property and from the proceeds pay certain bequests to his widow and children, and to convert his personal property into cash and divide the same among his children share and share alike. He requested that J. B. Sanders be appointed executor without bond. The will was duly admitted to probate April 16, 1921, and the executor appointed as requested in the will. For some years prior thereto, and continuously until about the first of the year 1925, J. B. Sanders was the president and an active managing officer of the Chase County National Bank. On July 8, 1924, he reported to the probate court that he had a balance of cash on hand belonging to the estate of $43,467.86, and on August 18, 1924, the probate court made an order for a partial distribution of the estate. On February 23, 1925, J. B. Sanders applied for leave to resign as executor. His resignation was later accepted, and on April 27,1925, J. H. Peyton was duly appointed administrator, with the will annexed. On May 6, 1925, he made demand on J. B. Sanders for all moneys and property in his hands belonging to the estate. Sanders refused to pay over any money, but tendered to plaintiff certain notes, the face value of which aggregated $45,191.55, bearing various dates from December 23, 1923, to June 24, 1924, executed by various parties. Some of them had been made payable to J. B. Sanders; others to the bank, and these were indorsed “Pay to the order of J. B. Sanders, Ex., without recourse, The Chase County National Bank by C. H. Garrison, Vice President.” The real value of any of these notes is not shown; perhaps they are worthless. Plaintiff declined to accept them.
The petition, filed March 25, 1926, alleges substantially the facts above stated, and further, that the officers of the bank knowingly and wrongfully used the moneys of the estate for the benefit of the bank, which was in a precarious financial condition. The bank filed an answer admitting formal matters, but in effect a general denial. When the case came on for trial, in December, 1926, after the jury was selected, the opening statements made and a witness sworn, the defendant bank moved for judgment in its favor for the reason “that the petition does not state a cause of action in favor of the plaintiff and against the defendant.” This motion was argued, considered and overruled. The bank then interposed a further demurrer to the petition and motion for judgment in its favor on the pleadings, as to all but one item (one of the notes which Sanders tendered to plaintiff was dated June 24, 1924 — less than two years before the petition was filed), for the reason that the action, as to all other items, was barred by the statute of limitations. The argument is that the action is for conversion, and that the conversion took place at the time the money was wrongfully used, as shown by the dates of the several notes. The court took this view of the matter; plaintiff declined to try the case as to the one item only; the motion was sustained and judgment was rendered for the defendant bank. Plaintiff complains of this ruling. It was error.
There was no reason to treat the peculations of defendants as separate items, with plaintiff’s right to recover to depend upon the dates of notes tendered by Sanders to plaintiff. Sanders had no authority to invest the money of the estate in notes, or in any other kind of property. His duty, under the will, was to convert the property of the estate into cash and to disburse that as the will directed. He had no authority from the probate court to loan the money of the estate or to invest it in any kind of property. Hence, the dates of the notes tendered to plaintiff, at most, pertain to details as to when or how the money was used. They have but little bearing upon the question of the bank’s liability to plaintiff.
The gist of plaintiff’s action against the bank is found in the allegations of the petition to the effect that the officers of the bank, conniving or conspiring with the executor of the estate, wrongfully used the money of the estate for the benefit of the bank. Just how they so used it is but a detail of the proof.
Appellee argues that, conceding for the purpose of the motion, that the money was wrongfully used as alleged, that such wrongful use amounts to a conversion to which the two-year statute of limitations applies; that there was at all times an executor of the estate, or an administrator, with the will annexed, and that an action might have been brought for the wrongful conversion at any time after such conversion. There are three difficulties with this argument. First, plaintiff is not required to base an action on conversion as a tort, but may treat it as an- action for money had and received. (Washbon v. Bank, 87 Kan. 698, 704, 125 Pac. 17.) But this theory need not be resorted to in this case. Second, the general rule is that the participant in a breach of trust cannot invoke the defense of the statute of limitations any more than the unfaithful trustee himself can do so. (Washbon v. Bank, supra.) In this view the fraudulent use of the money belonging to the estate for the benefit of the bank is regarded as continuing until an action may be maintained against the unfaithful trustee. Third (and this we regard the most important reason why appellee’s contention is unsound), there was no one who could effectively maintain the action sought to be maintained in this case until Sanders had resigned or been removed as executor and an administrator had been appointed. The law is well settled that the statute of limitations does not begin to run until a cause of action accrues. On this point the courts all agree, though there is difficulty sometimes in determining when the cause of action accrued. Generally speaking, it is well settled that the statute of limitations does not begin to run until there are in being a person capable of suing and a different person capable of being sued (37 C. J. 812), as well as a court of competent jurisdiction in which the matter may be heard. As long as J. B. Sanders was executor, that situation did not exist. To expect that a suit might be maintained by J. B. Sanders, as executor, against the bank in which he charged himself as executor with fraud, and charged himself and other officers as representing the bank with fraud, and all of them with a conspiracy wrongfully to use the money of the estate for the benefit of the bank, would be an anomaly, at least, and one in which it could not be expected that there would be a fair determination of the rights of the parties. We had a similar situation in State, ex rel, v. Bradbury, 123 Kan. 495, 256 Pac. 149, in which it was sought to compel the board of trustees of a high school district to bring an action in their official capacity against themselves individually to recover funds alleged to have been unlawfully expended. The difficulties in maintaining such an action were there pointed out, and mandamus was denied.
This question was considered in Bremer v. Williams, 210 Mass. 256. There one Berry was trustee under the wills of several estates. He used money from one to pay obligations of another. Later Bremer was appointed trustee of an estate, the money of which had been wrongfully used, and brought an action to recover. ' The question of the statute of limitations was raised. The court said:
“It is an underlying principle in the application of the statute of limitations that before it can begin to run there must be someone in existence by whom, and a different person against whom, the claim may be enforced. The statute implies that such persons are in being, and, if they are not, there is no room for its operation. It is the general rule that where one person represents both sides of conflicting claims this statute does. not run. . . . Berry represented both sides from 1902 to 1905. The beneficiaries under the trusts during this period could not have instituted proceedings in the name of the estates. Berry held the legal title to the several estates, and was the only person who could represent them. It is perhaps legally possible that Berry might have brought a suit in equity seeking to have the results of his thefts apportioned among the estates he had defrauded. . . . But as a practical proposition, legal or equitable rights ought not to be predicated upon the theoretical possibility that an embezzler before his detection may seek a court of equity for the adjustment among his victims of the frauds he has perpetrated. Having regard to the characteristics of human nature, such a proceeding is almost, if not quite, inconceivable. It is not a substantial basis upon which to start the running of the statute of limitations.” (p. 258.)
We have a similar situation here. From April, 1921, to April, 1925, J. B. Sanders, as executor of the will of S. T. Slabaugh, held the legal title to the property of the estate. The legatees named in the will were not in position to maintain this action. It is inconceivable that Sanders could have been expected to maintain it. The result is that the statute of limitations did not begin to run while Sanders was executor. This action was brought less than one year after plaintiff was appointed administrator, with the will -annexed. Hence, it is not barred by the two-year statute of limitations, which pertains to actions for conversion, or to actions for relief on the ground of fraud, nor by the three-year statute of limitations for an action for money had and received.
Appellee cites Scully v. McGrath, 201 N. Y. 61. The statute of limitations was not raised in that case. The facts there are so different than they are here that we do not regard the case as being in point.
Appellee says quite a little about the petition not being sufficient to state a cause of action. Really, it is not in position to urge that question, since there is no cross appeal from the ruling of the court overruling its motion based on that ground. But in any event we do not regard the point good. The petition was not attacked by mo tion to make more definite and certain, nor by demurrer. Defendant answered. In that situation, when the case came for trial and defendant moved for judgment, which motion was in effect a demurrer to the petition, for the reason that it did not state facts sufficient to constitute a cause of action, all of the allegations of the petition and the reasonable inferences to be drawn therefrom should be construed most favorably for plaintiff. So construed, the petition states a cause of action against both defendants, charging that they, by their joint action, wrongfully used the money of the estate for the benefit of the bank, and the trial court so held. It is true plaintiff undertook to specify the particular manner in which that had been accomplished, while stating the fact that he did not know the real means by which it was accomplished. In order to ascertain the real facts, plaintiff had asked permission to inspect the records and papers of the bank pertaining to the matter in order that he might plead them more specifically. Defendant denied this request. Plaintiff then applied to the court for an order directing defendants to permit plaintiff to inspect and make copies of such records. After a hearing the court made an order allowing the application, giving defendants a definite time in which to comply therewith. Before that time elapsed they asked for an extension of the time, which was by the court granted. Defendants ultimately ignored the order and never complied with it. In a further effort to ascertain the real facts, plaintiff made application for, and had issued, letters rogatory to the circuit court of Jackson county, Missouri, which court recognized the letters, and, based thereon, subpoena duces tecum was issued for a national bank examiner to bring with him the books showing the examination of the defendant bank with respect to the moneys of this estate. The bank examiner appeared, but claimed his exemption from testifying by reason of the confidential, governmental character of the report of the examination. The result was that up to the time of the trial the defendant bank, by ignoring the orders of the court below and the request of plaintiff, prevented the plaintiff from knowing the facts with reference to the way the money was handled as shown by the books of the bank. It is therefore in no position to complain that plaintiff’s allegations in that regard are not as definite as they should be. On the trial the question of whether the money was used in the specific manner alleged in the petition we believe not important, the real question being: Did the defendant bank, with knowledge on the part of its officers of the fact that this money belonged to the estate, use it in any way for the benefit of the bank?
The judgment of the court below is reversed, with directions for a new trial in accordance with this opinion. | [
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The opinion of the court was delivered by
Dawson, J.:
The question in this appeal is whether a certain 200-acre tract of land devised to John Jones by his father was subject to attachment and execution for the debts of the devisee, and its correct solution requires a construction of the will, which in part reads:
“2. I give and devise to my daughter, Mabel Wright, of Langdon, Kansas, the following-described real estate, situate in the county of Reno, and state of Kansas, to wit: [320 acres described] to have and to hold the same in fee simple.
“3. I give and devise unto my daughter, Ethel Miller, . . . [320 acres described] to have and to hold the same in fee simple.
“4. I give and devise to my son, Victor Jones, [240 acres described] to have and to hold the same in fee simple.
“5. I give and devise to my son, John Jones, [200 acres described] to have and to hold the same in fee simple.
“9. I am free to make the devises and bequests herein specified and they are made voluntarily for the use and benefit of the devisees and legatees herein named and no one else, and are made upon the express condition that the same shall not be subject to attachment, execution, garnishment or any legal process in favor of any creditor of such devisee or legatee. I do not feel under moral obligation to pay the indebtedness of any of the devisees or legatees of this last will and testament, and if any creditor shall attempt in violation of my will to subject my bequests or devises herein made or any of the real estate herein devised to the payment of any of the debts or obligations of the said devisee or legatee, and the court shall finally hold that such devise or bequest is subject to the payment of debts of a devisee or legatee, it is my will that the portion of the property which I have devised or bequeathed to any such devisee or legatee shall immediately become a part of the residue of my estate and such devise and bequest shall immediately lapse and end.
“The share of such devisee and legatee in such residue shall become a trust fund in the hands of the executors and shall be paid to the said devisee or legatee for necessities from time to time as the executors may determine and decide; and such fund, if held or declared by the court to be subject to judicial process of attachment, garnishment, or other legal proceedings for debt of the devisee or legatee, shall become a part of my estate, and I give and devise the same to my other children not involved in debt, share and share alike.
“10. All the residue of my estate, ... I give and devise to my four children, herein named, . . . share and share alike.
“11. I hereby nominate and appoint as executors of this my last will and testament, my daughters, Mabel Wright, and Ethel Miller, and Frank L. Martin, and I hereby authorize them as executors to do and perform every act necessary to carry out the provisions of this my last will and testament, and if it shall become necessary because of the provisions of this my last will and testament, that any of the real estate herein devised shall become a part of the residue of my estate, I hereby authorize my executors to make a sale thereof and to execute the necessary writings, contracts and deeds of 'conveyance, to sell and dispose of the same and convert the same into money for distribution as a part of the residue of my estate.”
The plaintiff, D. G. Hinshaw, brought this action against John Jones (J. W. Jones, Jr.) on five promissory notes. The land devised to John was attached on affidavit and publication service. Jones was not personally served; his place of abode was unknown and he had not been heard of for some years.
The defense to plaintiff’s action was undertaken by the executors and by the sisters and brother of John. They were permitted to intervene and filed their interplea, setting up the will, the long absence and silence of John, the possession of the executors, the non-liability of the property to attachment under the terms of the will, and praying for a construction of the will and for a judicial declaration of the rights of the intervenors and other heirs and devisees of the testator, and to quiet their title and other equitable relief.
Plaintiff’s demurrer to the interplea was sustained, the attachment was upheld, and the property ordered sold to satisfy the default judgment entered against John.
The intervenors appeal.
The appellee would justify the trial court’s judgment on the ground that the devise of the land to John Jones vested in him an unqualified title in fee simple, and that the provisions of paragraph 9 of his father’s will are contrary to law, against public policy, and void.
Let us see about this proposition. The fact that the devise to John in paragraph 5 is set down ahead of the qualifying and conditional provisions in paragraph 9 is of no particular significance. In Markham v. Waterman, 105 Kan. 93, 181 Pac. 621, it was said:
“The old rule that a seemingly unqualified devise in an independent and prior clause of a will cannot be diminished by separate, subsequent clauses of the will (McNutt v. McComb, 61 Kan. 25, 58 Pac. 965; 4 Kent Comm. 270) has been largely superseded by the modern Kansas rule, that the testator’s intention is to be gleaned ‘from the four corners of the instrument’ — from the entire text of the document. Some of our earlier cases foreshadow the coming of this doctrine (Williams v. McKinney, 34 Kan. 514, 519, 9 Pac. 265; Ernst v. Foster, 58 Kan. 438, 47 Pac. 527), and this court was fully committed to it in Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950, and has followed it consistently in all the later cases [citations].” (p. 95.)
In Pearson v. Orcutt, 106 Kan. 610, 612,189 Pac. 160, it was said:
“The defendants place much reliance upon McNutt v. McComb, 61 Kan. 25, 58 Pac. 965. . . . The similarity of that will to the one here involved, with respect to the estate conveyed, is obvious. But several considerations serve to impair the force of the decision as -a controlling precedent here. It was influenced largely by the application of the ancient and artificial rule that where the language of a will on its face imports the vesting of an absolute fee, that effect shall not be denied by reason of a subsequent clause attempting a limitation thereon. This rule is one of a number of somewhat similar char acter made use of in solving problems arising from conflicting provisions by-giving preference to one or the other according to some hard and fast formula, instead of attempting to reconcile them — to ascertain and carry out the actual wishes of the testator as derivable from his language and the attending circumstances. The primary rule of construction now followed by this court, in that situation as in all others, is to give effect to the testator’s real intention as gathered from the entire document, without regard to the place in which it occurs, except so far as that circumstance may logically throw light on his meaning.”
Our more recent cases reiterate this later rule. (Chaplin v. Chaplin, 105 Kan. 481, 181 Pac. 621; West v. West, 106 Kan. 157, 186 Pac. 1004; Utilities Co. v. Bowersock, 109 Kan. 718, 729, 202 Pac. 92; Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087; Bierer v. Bierer, 121 Kan. 57, 245 Pac. 1039; Regnier v. Regnier, 122 Kan. 59, 250 Pac. 1069.)
In view of the foregoing, the devise to John is to be defined by-giving due significance to the provisions of paragraph 9 as well as to those of paragraph 5.
What merit is there to appellee’s contention that the provisions of paragraph 9 are contrary to law and public policy? Appellee invokes the statute (R. S. 22-258) which declares that every devise by will shall convey all the title the testator had “unless it shall clearly appear by the will that the testator intended to convey a less estate.” But there can be no cavil here about the testator’s intention. He expressly intended to convey to his son only such an estate as could not be subjected to judicial process for the compulsory satisfaction of John’s debts. Whether an estate so limited and thus secure against involuntary alienation is valid is a question which we will presently consider, but the father’s intention was too plain for serious debate. No other construction is possible, and the testator’s avowed intention may neither be ignored nor excised. (Hurst v. Weaver, 75 Kan. 758, 90 Pac. 297; Bryant v. Flanner, 99 Kan. 472, 476, 162 Pac. 280; Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392.)
In Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 67 L. R. A. 146, 149, it was said:
“The intent to be discovered is not whether he [the testator] intended to make a valid disposition of his estate, but what provisions he in fact intended to make. When that is found, it is for the court to determine whether such intended provisions are valid or otherwise.” (p. 91.)
Coming then to the question of controlling importance, what is there in the provisions of paragraph 9 which can be judicially declared to offend against the public policy of this state. By constitution and by statute the family homestead and other exempt property are secure against involuntary alienation, and this principle of law gives a keynote to the pertinent public policy of this state on this subject. And a wealth of well-reasoned decisions declare that no rule of public policy is violated by a grantor or testator in tying up for limited intervals the right of alienation of property conferred upon his grantees or devisees.
In Wright v. Jenks, ante, p. 604, 261 Pac. 840, it was said:
“This court has frequently admitted that it has not been able to discover any valid objection to the placing of reasonable restrictions upon the alienation or devolution of property for limited periods — to make provision for the support of persons ill-fitted to wage life’s battles (Abbott v. Perkins, 90 Kan. 45, 132 Pac. 1177; Davis v. Davis, 121 Kan. 312, 246 Pac. 982); to furnish sustenance for an improvident son (Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030); to prevent or hinder a testator’s estate being dissipated by grandchildren for whom in his natural affection and solicitude he would provide a life-enduring competence. (Grossenbacher v. Spring, 108 Kan. 397, 402, 195 Pac. 884.)” (p. 608.)
In Pond v. Harrison, 96 Kan. 542, 152 Pac. 655, this court upheld a testamentary bequest of the net income of property to a son which provided that—
“ ‘Said net earnings shall not be subject to the order or assignment of or by said William H. Harrison or his wife or the survivor of them, nor shall the same be subject to pay their debts on execution, attachment or otherwise, but is a humane provision of mine to keep them from absolute want or becoming a public charge or charges in their declining years.’ ” (p. 544.)
In that case the property yielding the devised income was destroyed by fire and rebuilt with the proceeds of the insurance policy, but the lumber bill was not paid in full. It was held that the terms of the bequest were valid, and that even a materialman’s claim to a lien was unenforceable against the property. To the same effect was Everitt v. Haskins, 102 Kan. 546, 171 Pac. 632. The court is constrained to hold that the provisions of paragraph 9 did not offend against any rule of law or public policy.
Appellee, however, presses upon our attention the rather unusual form of the testator’s limitations upon the devise to John and the peculiar character of the restrictions placed upon alienation, or on the consequences of involuntary alienation. The will provides: “If the court shall finally hold that such device or bequest is sub ject to the payment of debts of a devisee or legatee, it is my will that the property I have devised or bequeathed . . . shall immediately lapse, [and] become a trust fund in the hands of the executors,” etc. Did such a restriction upon involuntary alienation have the legal effect of “nullifying” an order of court? We think not; at least no more than the valid terms of any will may, in a very narrow sense, be said to restrict the scope of a court’s jurisdiction. There is ample jurisdiction to interpret a will, but it is quite common for wills to contain provisions which would “nullify” in advance any orders of court doing violence to their plain and lawful terms. If what we have just said does not render any further discussion merely academic, we would hold that the legal effect of a final judgment holding the property subject to the payment of the debts of the devisee would be to terminate the estate thus devised — terminate it in a lawful and orderly manner. In Wright v. Jenks, supra, it was said:
“We have referred above to the power of a grantor or testator to place reasonable restrictions for limited periods upon the right of his grantee or devisee to alienate the property granted or devised. But a mere admonitory gesture in a deed or will is insufficient to do so. (Durand v. Higgins, 67 Kan. 110, 72 Pac. 667; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Howe v. Howe, 94 Kan. 67, 145 Pac. 873; 18 C. J. 361. See, also, Bennett v. Chapin, 77 Mich. 526; and O’Connor v. Thetford, [Tex. Civ. App.] 174 S. W. 680.) To make such restriction' effective some practical bar to a breach of such restriction must appear, e. g., by the intervention of trustees having active duties to discharge during the restrictive period; by provision for reentry or alternative grant or devise over for breach of conditions prescribed in the instrument itself. (O’Brien v. Wetherall, 14 Kan. 616; Abbott v. Perkins, 90 Kan. 45, 48, 49, 132 Pac. 1177; Grossenbacher v. Spring, 108 Kan. 397, 402, 195 Pac. 884.) On this general subject see note to Latimer v. Waddell, 119 N. C. 370, in 3 L. R. A., n. s., 668-678.” (p. 609.)
Among our own cases which recognize that conditions subsequent may bring about a defeasance of a vested estate were Strom v. Wood, 100 Kan. 556, 164 Pac. 1100; Wright v. Cummings, 108 Kan.. 667, 196 Pac. 246; and Campbell v. Durant, 110 Kan. 30, 33, 34, 202 Pac. 841.
Here there is a devise over if the conditions of the first devise are defeated. Paragraph 9 contains provisions both of condition and limitation, and in either case there was nothing devised to John which was properly subjected to attachment at the instance of the plaintiff. The pertinent cases cited by appellee have not been over looked; but they are not Kansas cases, and they are at variance with the spirit of our jurisprudence.
The judgment of the district court is reversed and the cause remanded, with instructions to set aside the attachment and to enter judgment in favor of the intervenors. | [
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The opinion of the court was delivered by
Marshall, J::
The opinion in this action was filed on May 7, 1927 (State, ex rel., v. Howard, 123 Kan. 432, 256 Pac. 172). A motion for rehearing was denied on June 18, 1927. An application for leave to file a motion to modify that opinion and a second motion for rehearing has been filed. In the opinion filed May 7, 1927, the following language is found:
“At the hotel Mathews got the defendant in communication with the White Motor Truck Company, of Casper, Wyo., who had a secondhand tractor for sale at $5,000. The defendant talked over the telephone with William Utzinger, of the White Motor Truck Company, concerning the purchase of that tractor. In that conversation the defendant learned that the White Motor Truck Company asked $5,000 for the tractor, but also learned that $4,500 had been named as the price to Mathews.” (p.433.)
The statement that the defendant in that conversation learned that $5,000 was asked for the tractor, but that $4,500 had been named as the price to Mathews, is practically conceded by the plaintiff to be incorrect. An examination of the abstract reveals that the conversation between the defendant and Mr. Utsinger did not disclose the price asked for the tractor nor the amount for which'it could be purchased, but there is abundant evidence in the abstract to show he knew that $5,000 was the price asked for the tractor and knew that it could be purchased for $4,500. To the extent herein stated, the former opinion is modified, and with this modification, the judgment is adhered to.
Leave to file a motion to modify and for a rehearing is denied.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the receiver of The Mid-West Mutual Insurance Company against some three thousand of its policyholders, residing in many counties of the state, to recover from each a sum equal to one annual premium on his policy. The questions presented are similar to those considered in Hall v. Hall, 124 Kan. 466, 260 Pac. 645. The decision in that case is controlling here.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
These are two wheat growers’ cases, similar to the Oden case just decided. (Wheat Growers Ass’n v. Oden, post, p. 179.) While they were not tried with that case in the court below, nor presented with it here, they present no questions of law not discussed and decided in that case. They are reversed with directions to render judgment for plaintiff as in the Oden case. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Walter Bingham was prosecuted upon a charge of perjury, and the trial resulted in a conviction.
In his appeal he complains that the information was defective in that the offense was not set forth with required fullness and certainty. He complains, too, of the denial of his motion to require an election by the state upon which of two transactions to which the alleged false testimony related it would rely for a conviction, also of the instructions given and of the overruling of his motion for a new trial.
The information in a single count charged that in a prosecution of the defendant in 1925 in the district court, of Franklin county, upon a charge of larceny, he corruptly and falsely testified in answer to seventeen question's propounded to him in the larceny case. The following are the answers given by him in response to the questions asked:
“Q. Did you go to Vinland on the 28th day of November, 1924, and sell some chickens? A. No, sir.
“Q. Did you drive in a Ford runabout and sell some chickens there? A. No.
“Q. Did you take about four or five sacies of Plymouth Rock pullets into that Vinland store? A. I did not.
“Q. There has been introduced here a slip bearing the date of November 28, 1924, showing that a certain payment of $16 and some cents was made to one H. Johnson at Vinland. Was that made to you? A. No, sir.
“Q. Was you ever at the Vinland store? A. Not that I know of; no.
“Q. Have you ever been to Vinland? A. No, sir.
“(Referring to a check of October 11, 1924, made by Latham & Sons and written by Della Perkins, for $8.75, bearing the indorsement, ‘H. Johnson, by Walter Bingham.’)
“Q. Had you even seen it before that time? (Date of prehminary.) A No, sir.
“Q. Did you ever sell them (chickens) at the place where Della Perkins works? A. No, sir.
“Q. Now you saw Mrs. Perkins there at that place where you sold these chickens, didn’t you? A. I didn’t.
“Q. Didn’t see her there? A. Never sold no chickens there.
“Q. You never sold any chickens to her? A. No.
“Q. Never did? A. No, sir.
“Q. You are quite sure you never sold her any chickens? A. Never sold her any chickens; no, sir.
“Q. You gave her the name of H. Johnson? A. No, sir.
“Q. Now, you said you didn’t know whether you had ever been to Vinland or not. Can you tell the jury whether you have ever been to Vinland? A. I was not there.
“Q. You were not there? You are positive of that? A. Yes, sir.
“Q. You didn’t take chickens up there and sell them and give the name of H. Davis? A. I did not.”
It was alleged that the testimony so given by the defendant was competent and material and was known by him to be false when it was given.
He contends that the court erred in overruling the motion to quash the information upon the ground that it did not charge an .offense. Upon this ruling he argues that the charge related to two distinct transactions, one relating to a sale of chickens at Vinland, under the name of H. Johnson, and another sale at Baldwin, under the name of H. Davis, and that both could not be included in a single count, and further, that it was rendered bad by reason of uncertainty. It was proper and necessary in the larceny case to charge as the state did, the different transactions in different counts, but the perjury committed at that trial could be treated as a single offense and included in a single count, and there was no error in that respect.
He urges further that the information was insufficient, in that the offense was not sufficiently stated by setting forth merely the questions and answers, with the conclusions that the answers were false. It is said that the prosecution should have set out at length the actual facts by way of antithesis. The questions and answers with the distinct allegation of falsity point out with reasonable certainty the charge which the defendant was required to defend. When the charge accomplishes that purpose it is not necessary to set out more fully the actual facts by way of antithesis. That rule was well stated by Mr. Justice Mason in State v. Saunders, 122 Kan. 840, 253 Pac. 572.
When the evidence of the state was closed defendant made a motion that the state be required to elect which of the two transactions it would rely upon for a conviction. As we have seen, the assignment of perjury occurred at one time and in one proceeding, and the state was warranted in treating the false testimony given at the larceny trial as a single offense, and the defendant is hardly in a position to complain of prejudice because he was not charged in separate counts for each false answer made in his testimony given at that trial.
There is a further contention that the evidence did not sustain the verdict because all the charges in the information were not proven. Assuming it to be necessary that every allegation should be proven as alleged, an examination of the evidence shows that the averments were substantially proven, and that is sufficient. (State v. Saunders, supra.)
It is also suggested that the testimony upon which perjury was assigned was not material to the issues tried in the larceny case. It was alleged in the information that the testimony was material, but the materiality of the testimony as the allegations show was plainly apparent, and it has been held that an averment that it is material to the issue on trial is ordinarily sufficient. (State v. Brownfield, 67 Kan. 627, 73 Pac. 925; State v. Horine, 70 Kan. 256, 78 Pac. 41; State v. Adams, 119 Kan. 509, 240 Pac. 955.)
There is complaint of instruction in which the jury were told that whether or not the testimony on which .perjury was assigned was material was one for the- determination of the court, and the jury was further advised that the testimony alleged was material to the issues tried in the former case, but that whether or not the defendant gave the testimony as charged was wholly within the province' of the jury to determine, and that if he did give testimony it was still wholly within the province of the jury to determine whether or not such testimony was willfully and corruptly false. The com plaint of the instructions is that they were not applicable, in that no issue was formed and no evidence introduced in the case touching upon the materiality of such evidence. A distinct issue was formed as to the materiality of the alleged false testimony when it was set forth in the information and a plea of not guilty had been entered. Whether the testimony charged to have been false was material was a question for the court to determine, and the legal question of materiality was not one for the jury to solve with or without evidence. The trial court correctly ruled that the materiality of the alleged false testimony was a question of law for the court, and it properly left to the jury the questions whether the defendant had testified as alleged, and also as to the falsity of the testimony given. (State v. Lewis, 10 Kan. 157.) •
It appears that the trial in the larceny case did not result in a conviction, but it has been well decided that a person cannot escape punishment for perjury actually committed in a criminal case by his success in that case in inducing the jury to credit his false testimony or in securing an acquittal on the charge. (State v. Williams, 60 Kan. 837, 58 Pac. 476; State v. Bevill, 79 Kan. 524, 100 Pac. 476.)
The evidence in the record is deemed to be amply sufficient to sustain the verdict, and no error was committed in overruling the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a father to recover damages for the death of his son. Plaintiff prevailed and defendant appeals.
On July 18, 1924, the plaintiff’s son, Delno Stoddard, nineteen, and a friend, Fay Gray, left their homes in Missouri bound for the harvest fields in Kansas. They arrived in Kansas City, Mo., the following morning, had breakfast, took a street car to Armourdale, Kansas, and waited in the train yards for one of defendant’s westbound trains. There was a double track, the south used by eastbound trains, the north by west-bound. They boarded a west-bound Rock Island train, consisting of about thirty empty fruit express cars, from the left or south side as it traveled west, ten or twelve cars from the engine. Gray crossed over to the north. Both climbed the ladders, at the front end of the car to get on top. There-was evidence that after they reached the top and had ridden for a short distance, a man approached from the rear end of the train, waved, and ordered them off the train; that they got off because they were afraid; that the fireman on an incoming east-bound train saw the pilot of the engine strike young Stoddard; that he died without regaining consciousness; that the east-and-west tracks at the point in question were eight feet apart; and that they curved at this particular place. On the part of the defendant there was evidence showing that the head brakeman sat about the second car from the engine during the time in question; that the rear brakeman, after closing the switch from which the train moved, at or about the time the boys boarded it, got into the caboose, where he remained until the train reached Lawrence.
On behalf of the plaintiff it is argued that it was negligence on the part of the trainman to order the boys from the train at the place and under the circumstances because he was more familiar with the closeness of the tracks, knew there was a curve and that another train was likely to be or was approaching from the west which made it inherently dangerous for the deceased to attempt to alight. The defendant contends there was a total absence of a showing of negligence on the part of the defendant or its employees.
There was evidence that both trains at or about the time of the accident were running at a speed of about fifteen miles per hour. Fay Gray, the deceased’s traveling companion, left the train from the north side in perfect safety. The deceased. chose to leave the train on the south side and was hit and killed by an east-bound train running on the south track. There was no evidence showing the length of time he stood upon or in the vicinity of the track after alighting from the west-bound train, and no claim that the deceased met death through injuries inflicted by the train on which he had been riding, but that he met death from injuries inflicted by the east-bound train running on another track. So it is left largely to speculation and conjecture as to just how or why he was struck by the east-bound train. Granting that defendant’s brakeman ordered the deceased from the train as claimed, it can hardly be said that it was negligence so to do because of the proximity of the south track or the approach of an east-bound train thereon. The deceased and his companion, being on top of the car, were in as good position to observe the approach of another train as was the brakeman. The brakeman did not tell the deceased to get down on the left side. He did that of his own volition. We have given careful consideration to the matter and conclude that no negligence was shown. This conclusion compels a reversal of the judgment.
The judgment is reversed and the cause remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This cause was submitted to this court on briefs and oral argument at our January session. It was duly considered by the court and decided the next month. The opinion is reported in 122 Kan. 741, 253 Pac. 586. The time for filing a motion for rehearing was twice extended at plaintiff’s request, for reasons deemed sufficient and which are no longer material. Plaintiff’s motion for rehearing was considered by the court and overruled (123 Kan. 414, 255 Pac. 979). We have been asked to reconsider the motion for rehearing. While this request is unusual, the court has again considered the case in its entirety — the record as presented and all briefs and arguments relating thereto. Some new questions, not presented to the court below, are argued. These, of course, cannot be considered. Upon a reconsideration of the case the court adheres to its former opinion. Some of the papers filed by counsel for plaintiff in this matter are impertinent. These are stricken from the files.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a suit by Charlotte E. Hazen against John Ferriter, commenced in the district court of Sedgwick county in September, 1925, upon a note where the answer, in addition to a general denial, contains a denial of the execution of the note, a plea of payment, a plea of bar by the statute of limitations, and want of consideration. The answer was verified, to which a reply of general denial was filed. Trial was had to a jury. Verdict and judgment were for plaintiff, from which defendant appeals.
The note was dated June 1,1916, for $894.96, with interest at six per cent, and contained the following statement on the face of it: “This is given to compare with statement. Amt. being due Mrs. Hazen.” On the back of the note there were indorsed seven items of payment, ranging between November 13, 1918, and December 6, 1924, amounting in all to $90.38. In the opening statement made to the jury by counsel for the defendant the execution of the note was admitted, and the contents of the note with the indorsements were by him read to the jury. After the statement of the case to the jury the court was requested to determine on whom should be the burden of proof, and placed it upon the defendant. Of this the defendant complains as error. The defendant proceeded with the introduction of his testimony, and then the plaintiff introduced her testimony; there was rebuttal testimony, and both parties rested at the close of the day on which the trial began. In the closing testimony a question was asked about the stubs of checks which the defendant had testified he had used to pay this note to the plaintiff. On the following morning when court reconvened the defendant asked to open up the case for the introduction of further testimony on behalf of the defense, and particularly for the purpose of introducing two check stubs in an old check book, one of which bore date of June 16, 1916, to Charlotte E. Hazen, for $475, “due on demand note.” The other was dated July 12, 1916, to Charlotte Hazen, for $418, “bal. due on demand note.” In the absence of the jury the defendant testified about his not having thought of these check stubs being evidence until the question was asked the night before; that he did not know he had them; that he had made special search during the night and found these stubs, but was unable to find the returned checks. Objection was made by the plaintiff to opening up the case, and the court sustained the objection and refused to reopen the case. Application was made twice thereafter by attorney for defendant for the same privilege and denied both times. At the last application attorney for plaintiff stated he would not object to the reopening of the case if it would be reopened for all purposes, as he desired to put the defendant on the stand and lay a foundation -for impeachment. The record apparently shows that the court was willing to open it for all purposes but declined to open it for the specific purpose. Defendant claims this was an abuse of judicial discretion.
A preliminary matter engaged the attention of the trial court with reference to the verification of the answer, but we do not consider that as one of the serious matters here involved, and will consider the other two important features as if the answer put in issue every allegation of the petition, including the execution of the note. However, the opening statement of counsel for defendant admitted the execution of the note sued upon, and immediately after that statement the court, at the request of counsel for the plaintiff, placed the burden of proof upon the defendant. The wsTy the issues stood then it was incumbent upon the defendant to prove his allegations of (1) want of consideration for the execution of the note, (2) payment in full, and (3) the bar of the statute of limitations. There was nothing at that time incumbent on the plaintiff to prove, unless, by the general denial and on account of the face of the note showing it to be past due for more than five years, it might properly be said that it was incumbent on the plaintiff to prevent the bar of the statute of limitations by showing payments to have been made by the defendant upon the note so as to keep it alive. The statute of limitations has always been considered a personal privilege. Many defendants decline to use it, and permit judgment to be rendered even if it might be barred by a plea of this kind. (37 C. J. 707.) It is also an affirmative plea and one which it is usually necessary to support by evidence.
“The statute is generally considered an affirmative defense, and the burden of proof is on those seeking to avail themselves of its benefit to show that the cause of action has been barred thereby.” (17 R. C. L. 1004.)
However, in this case the date of the note itself and the fact that the suit was not commenced until September, 1925, would show that the plea was good unless the bar of the statute was removed by appropriate evidence, which would be incumbent on the plaintiff. A number of Kansas cases cited by counsel for defendant hold that under such circumstances the burden would properly rest upon the plaintiff as far as this issue is concerned, although it involves in itself two or more steps and the shifting of the burden of proof.
“The burden of introducing evidence may shift several times in one case. While the defendant may have the burden to show that the claim is barred, he need only make a prima jade case to shift the burden to the plaintiff, who will be obliged to prove such facts as will prevent the running of the statute, when the burden of introducing evidence may again fall on the defendant.” (17. R. C. L. 1004.)
Our courts have frequently held that the order of proof is discretionary with the court.
“The order in which proof shall be produced is largely a matter within the discretion of the trial court, and the permission to offer evidence on rebuttal which should have been produced in chief is not a ground of reversal unless it amounts to an abuse of discretion.” (Finley v. Pierce, 120 Kan. 474, syl. ¶[ 2, 244 Pac. 2.)
For this reason and for the further reason that the answer raised at least two other issues — want of consideration and payment — ■ about which there can be no question but that the burden of proof was upon the defendant, we do not think there was prejudicial error in placing the burden of proof in the case upon the defendant. Part of the argument, of defendant’s counsel would indicate that the court by so doing was leaving the impression with the jury that it was incumbent upon the defendant to prove everything involved in the issues, even the indorsements, but the instructions given by the court to the jury upon this question leave no possible doubt as to the burden with reference to indorsements on the note of alleged payments.
“3. . . . And in this connection you are further instructed that before the plaintiff is entitled to recover, she must prove, by a preponderance of the evidence, that the indorsements upon said note were made and that the defendant, John Ferriter, had knowledge of and consented to the indorsements on the note.”
Was there error in the refusal of the trial court to reopen the case for the purpose of introducing the check stubs found by the defendant? Counsel for appellent state that they have been unable to find a Kansas decision where the refusal to reopen a case was held to be an abuse of judicial discretion, but cite numerous decisions affirming and approving the rulings of trial courts where in the exercise of such discretion cases were reopened for the reception of additional evidence, asserting that the circumstances in those cases required a greater liberality than in this, and argue therefrom that the general approval of the liberal attitude of the trial judges in this respect implies that a departure from such liberal practice will be an abuse of discretion. We think such conclusion does not necessarily follow. It would not be discretion if it were governed by any uniform rule. There must be wide latitude or spread for the individual judgment of the trial court. At the same time, reviewing courts must recognize the abuse of discretion where it exists. In other words, it is not so much a review of discretion as a review of the abuse thereof.
“Many of the eases lay down the rule that the action of the trial court as to matters within its judicial discretion will not be disturbed unless there is a clear abuse thereof, or, as it is frequently stated, the appellate court will not review the discretion of the trial court.” (2 R. C. L. 211.)
Kansas courts have from the earliest decisions declined to reverse on such grounds unless there was a manifest abuse of discretion, or a clear abuse. (Taylor v. Clendening, 4 Kan. 524; Byington v. Comm’rs of Saline Co., 37 Kan. 654, 16 Pac. 105.) This policy is followed on the theory that the “trial court is in much better position to determine the questions of good faith than are we,” as was said in the case of Swift v. Platte, 68 Kan. 1, 14, 74 Pac. 271, 74 Pac. 635, and of course is in much better position to determine the reasonableness of such request and the fairness to the parties in granting or refusing it. Taking into consideration all the facts and circumstances in this case we do not think there was an abuse of discretion in the refusal to open the case for further testimony.
At the request of the defendant two questions were submitted to the jury with reference to payments indorsed on the back of the note, and they answered such questions, finding two of the seven payments were made, the first one January, 1918, and the last one, December, 1924.
Error is assigned because of the refusal of the court to submit other questions requested by the defendant and also to give certain instructions. After careful examination of the questions asked and refused and the instructions refused and given, we find no substantial error therein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In this case, as reported in 121 Kan. 559, 560, 247 Pac. 447, 448, an erroneous citation was given. The sentence as printed reads:
“The proceeding in this case was under R. S. 12-607, et seq., which do not require such a resolution.” (p. 560.)
The citation to the statute was an error; it should have been R. S. 12-617. The error is hereby corrected, on the court’s own motion. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment to recover possession of 800 acres of Ellsworth county land known as the Happy Valley ranch. Plaintiff claimed a half interest in the ranch by virtue of his mother’s will and the other half interest as successor in title to his deceased sister.
The defendants claimed an undivided half interest in the ranch under James S. Jenks, to whom plaintiff had made a quitclaim deed of the interest devised to him by his mother’s will. The pertinent paragraph of the will reads:
“Item 1st. I [Emma J. C. Wright] do hereby devise, will and bequeath to my husband, Geo. E. Wright, the farm known as ‘The Happy Valley ranch’ in Ellsworth county, Kansas, and all lands thereunto belonging for the term of his natural life without the power of disposing of the same. I also will him all the cattle on the ranch at the time of my death. In event of his death the property to revert equally to Chas, and Ina Wright, my children, during their natural lives and to their children of their bodies after them, they not having the right to sell, encumber or dispose of the same; in, event of either dying without heirs, the property to revert to the survivor of heirs.”
Emma J. C. Wright, the testator and mother of plaintiff, died in Denver, Colo., in 1894. Her will was probated in Ohio and in Ells-worth county, Kansas. The life tenant designated by the will, George F. Wright, entered into possession of the ranch and enjoyed its rents and profits during his lifetime.
On May 19, 1900, the plaintiff, Charles W. Wright, and Mamie I. Wright, his then wife, executed and delivered to James S. Jenks of Arapahoe county, Colorado, a quitclaim of all their interest in the Happy Valley ranch, describing it in regular terms of government survey. The consideration named in the deed was one hundred dollars. The deed was recorded in Ellsworth county on May 21, 1900.
On December 19, 1911, George F. Wright, the life tenant, died in Florida. Thereupon James S. Jenks, as grantee under the plaintiff’s quitclaim deed of 1900, and Ina Wright (Mrs. Paddock), under her mother’s will, jointly entered into possession of the ranch through their tenant and mutually . shared the rents and profits. Jenks died in 1920, and defendants are his successors in title and interest. Ina died in Ohio on March 14, 1926. It does not appear that she ever attempted to sell, encumber, or dispose of her interest in the ranch; and it is agreed that she died without having any children of her body or any issue whatsoever.
In February, 1912, a few weeks after the death of the life tenant, this plaintiff employed a lawyer to go to Colorado to attempt to obtain a surrender of the interest in the ranch held or claimed by Jenks by virtue of his quitclaim deed of 1900. This lawyer tendered Jenks $250 in gold for a relinquishment of his interest in the property. This offer was declined, and on February 19, 1912, this plaintiff brought suit in the district court of Ellsworth county to cancel the quitclaim deed he had executed and delivered to Jenks eleven years before. In that petition plaintiff alleged that at the time the quitclaim deed was executed he (plaintiff) was a drug addict and incompetent, that Jenks knew that fact, that plaintiff then had no money to pay for the drugs which he craved, that Jenks agreed to loan him a hundred dollars on the security of plaintiff’s interest in the Happy Valley ranch, and pursuant thereto and on the supposition that the instrument was a “lease” of his interest given to secure that loan he signed the quitclaim deed, and—
“Plaintiff at the time being nearly crazy for money to buy cocaine and drugs, and wholly incompetent to transact business, and wholly unaccountable for his acts, all of which said Jenks at the time well knew, together with his then wife signed the paper which said Jenks handed to him, supposing at the time that said paper was security only to secure the said debt to be incurred of $100, and did not read said paper, nor was he acquainted with the contents thereof, but signed same upon the command and direction of said defendant James S. Jenks . . . The said Jenks kept the said paper and handed to said plaintiff the sum of ten dollars, . . . and ... at such different times handed to plaintiff different sums of money, but in all not more than ten dollars in addition to the ten dollars. ... Said plaintiff avers that he learned long after he had signed the said paper that the same was a deed, which purported to convey unto the said Jenks all of said plaintiff’s title and interest in and to said real estate above described. That the said defendant Jenks, knowingly, wrongfully and fraudulently, pretended that plaintiff was signing a paper as security only for $100.”
Nothing came of that lawsuit, and October 8, 1912, it was dismissed. This action was begun on April 30, 1926. The pleadings were somewhat lengthy, but neither they nor the evidence developed any sharply controverted issue of fact. At the conclusion of the evidence adduced by the parties, defendants’ motion for an instructed verdict was sustained and judgment was entered in their behalf.
Plaintiff appeals, and presents a number of interesting legal questions suggested by the record:
He contends that when he executed the quitclaim conveyance to Jenks in 1900 his interest in the Happy Yalley ranch was a contingent remainder which under a rule of the feudal law was not alienable to a stranger. But the philosophy of the feudal law had its basis and justification in the condition of society in medieval times. (Miller v. Miller, 91 Kan. 1, 5, 136 Pac. 953.) As such, it was a part of the common law of England, but being altogether unsuited to the conditions and needs of the people of this state it never became a feature of Kansas jurisprudence. In Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, it was said:
“It will not be denied that in every state particular rules of the common law, as it existed in England prior to the fourth year, of the reign of James I, are not consciously regarded as binding; many others are consciously rejected, and new rules, the product of American conditions, departing widely from the English common law in fact, and quite indifferent to it in theory, became established and must be recognized as of controlling authority. Rules of law have their birth, growth and decay, like generations of men, and in order to meet the expanding needs of the inhabitants of the young commonwealth the legislature enacted the statute of 1868, continuing in force the common law only as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people.” (p. 229.) °
In Markham v. Waterman, 105 Kan. 93, 98, 181 Pac. 621, it was said:
“In this state the studied and consistent public policy has been to maintain as far as may be the natural simplicity of property rights, uncluttered with artificial refinements of the common law. (Simpson v. Mundee and Brown, 3 Kan. 172, 184, 185.) Whatever form or sort of property, or interest in property, a man owns, in this state, may ordinarily be the subject of legitimate barter and sale.”
It is argued, however, that if the devise in the mother’s will be regarded as an entailment of the remainder estate in plaintiff and his sister, then plaintiff’s quitclaim deed was ineffective to sever that entailment, because by another rule of the common law only a tenant in tail in possession, or in conjunction with the tenant in possession, could break the entailment by submitting to a fine and recovery. That, too, was an antiquated rule of the common law which does not fit into modern Kansas jurisprudence. This court has frequently admitted that it has not been able to discover any valid objection to the placing of reasonable restrictions upon the alienation or devolution of property for limited periods; to make provision for the support of persons ill fitted to wage life’s battles (Abbott v. Perkins, 90 Kan. 45, 132 Pac. 1177; Davis v. Davis, 121 Kan. 312, 246 Pac. 982); to furnish sustenance for an improvident son (Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030); to prevent or hinder a testator’s estate being dissipated by grandchildren for whom in his natural affection and solicitude he would provide a life-enduring competence (Grossenbacher v. Spring, 108 Kan. 397, 402, 195 Pac. 884). And this court has repeatedly conceded that there is no rule of law or public policy against the entailment of an estate to endure so long as the successive tenants in tail see fit to respect it, since they themselves may get rid of the entailment by a mere conveyance whenever their needs or circumstances may constrain them thereto. In Davis v. Davis, supra, it was said.
“A devise of land to a person for life, and providing that upon the death of such person ’the fee title shall vest and become the property of the children born of the body’ of such person constitutes an estate tail which the tenant ib tail may transform into an estate in fee simple by amonveyance.” (Syl. f 1.)
But this court is not disposed to resuscitate this obsolete subtlety of the common law, without point or purpose to serve in this age, and engraft it as a condition prerequisite to an effective conveyance of an estate tail. What modern rule of law or public policy would be served by requiring that George F. Wright, the life tenant, should join or assent to the making of plaintiff’s quitclaim deed in 1900 in order to give it effect? None has been suggested, except that in bygone times when the feudal system was in vogue in England such was the rule. In Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146, it was said:
“Estates are said to vest in possession, and to vest in interest. An estaje vests in possession when there is an accrued, fixed and indefeasible right to present enjoyment. An estate vests in interest when there is a present, accrued, fixed and indefeasible right to enjoyment at a future time. ... A remainder vests in interest when a person is in being and definitely ascertained who will, if he lives, and whose heirs, devisees, or grantees will, if he does not live, have an indefeasible right to enjoyment, on termination of the precedent estate.” (pp. 315, 323.)
The court holds that by the will of plaintiff’s mother an undivided one-half interest in the Happy Valley ranch vested in plaintiff subject to the life tenancy conferred by the same instrument on his stepfather, George F. Wright; and that plaintiff’s interest was a legitimate subject of barter and sale on May 18, 1900,' when he executed the quitclaim deed to defendants’ predecessor in title, James S. Jenks.
We have referred above to the power of a grantor or testator to place reasonable restriction for limited periods upon the right of his grantee or devisee to alienate the property granted or devised. But a mere admonitory gesture in a deed or will is insufficient to do so. (Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Howe v. Howe, 94 Kan. 67, 145 Pac. 873; 18 C. J. 361. See, also, Bennett v. Chapin, 77 Mich. 526; and O’Connor v. Thetford, [Tex. Civ. App.] 174 S. W. 680.) To make such restriction effective some practical bar to a breach of such restriction must appear, e. g., by the intervention of trustees having active duties to discharge during the restrictive period; by provision for reentry or alternative grant or devise over for breach of conditions prescribed in the instrument itself. (O’Brien v. Weth erall, 14 Kan. 616; Abbott v. Perkins, 90 Kan. 45, 48, 49, 132 Pac. 1177; Grossenbacker v. Spring, 108 Kan. 397, 402, 195 Pac. 884.) On this general subject see note to Latimer v. Waddell, 119 N. C. 370, in 3 L. R. A., n. s., 668-678.
Here the language of the mother’s will, “they [plaintiff and his sister] not having the right to sell, encumber or dispose of the same,” was altogether ineffective for two reasons — first, the testator created an estate tail in each of her children with the legal consequences attaching thereto; and second, the testator provided no effective bar or alternative consequence to enforce it.
Did the trial court err in sustaining defendants’ motion for an instructed verdict? What was there for a jury to decide? The evidence disclosed no controverted issue of material fact. The execution, delivery, and recording of the quitclaim deed in 1900 were established. However incompetent plaintiff was by reason of his being addicted to drugs in 1900, he regained his competency, graduated from college in 1904, and commenced the practice of medicine, and he has followed that profession ever since. If we infer from the self-serving evidence of plaintiff’s second wife that in his conversation with James S. Jenks in Denver in 1910 there was an admission by Jenks that the quitclaim deed of 1900 was a mortgage, but plaintiff could not prove it- — “You cannot prove that it [the quitclaim deed] was left with me as security” — this statement was in effect a repudiation or breach of trust by Jenks which required plaintiff to bestir himself within statutory time to- vindicate whatever right he claimed by virtue of any oral arrangement with Jenks. (R. S. 60-306, second clause; Guild v. McDaniels, 43 Kan. 548, 28 Pac. 607; Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27; Nicholson v. Nicholson, 94 Kan. 153, 157, 146 Pac. 340.) If the quitclaim deed had been obtained by fraud during plaintiff’s incompetency as a drug addict, relief should have been sought within two years after his disability terminated; and while the record does not show precisely when that happened, it must have been more than twenty years before this action was begun. If the two- and three-year clauses of the statute of limitations do not apply by reason of the absence of Jenks from Kansas, yet the rule as to laches is equally potent, and a twenty years’ delay was an effective barrier to this action. (Yeamans v. James, 29 Kan. 373; Reihl v. Likowski, 33 Kan. 515, syl. ¶ 2, 6 Pac. 886, 5 L. R. A., n. s., 986; Dunbar v. Green, 66 Kan. 557, 72 Pac. 243; Hams v. Defenbaugh, 82 Kan. 765, 109 Pac. 681; Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098; Patterson v. Hewitt, 195 U. S. 309, 49 L. Ed. 214.)
While this action was formulated as one in ejectment, it could not be tried as such until the quitclaim deed of 1900 had been gotten rid of with the aid of the trial court’s equity powers. (Reddy v. Graham, 110 Kan. 753, 205 Pac. 362. See, also, Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332.) It is a salutary rule of law which provides that evidence to prove a written instrument to be something other than it purports, must be “clear, consistent, unequivocal, satisfactory and convincing” (Hoyt v. National Bank, 115 Kan. 167, 175, 222 Pac. 127), and its pertinency as a defense to an attack on a twenty-six-year-old deed is obvious. The grantee was dead; the facts touching his purchase of plaintiff’s remainder interest in the property could not be ascertained. To say the least, there was no evidence which measurably approached the requisite standard to impeach the deed under which defendants claimed title.
The foregoing disposes of so much of plaintiff’s claim to the Happy Valley ranch as rests on the undivided one-half interest devised to him by his mother’s will. But what about the other half interest claimed by plaintiff as successor in title to his deceased sister? Plaintiff put his whole title in issue in this lawsuit. Certainly a litigant does not lose his own by suing for more than his own. Yet this judgment reads:
“It is therefore by the court considered, ordered and adjudged that the plaintiff take nothing.”
Such a judgment dose not correctly define the rights of these litigants. The quitclaim deed did not pass to Jenks the plaintiff’s after-acquired interest. Indeed that after-acquired interest did not pertain to the subject matter covered by the deed of 1900. As successor in title to his sister plaintiff has acquired something entirely different — the other undivided half interest in the Happy Valley ranch. We note in the pleadings and brief that defendants make no claim to more than an undivided half interest in the property. The judgment ought to be clarified accordingly. It should be decreed that defendants are the owners of an undivided one-half interest in the Happy Valley ranch, and that plaintiff is also the owner of an undivided half interest in the same property, and that he is entitled to the rights of a tenant in common with defendants in the possession and enjoyment thereof.
To that end the cause will be remanded to the district court to modify its judgment as outlined above, and when so modified it will be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to set aside three deeds to certain Wabaunsee county lands which defendants had procured from their aged father. The action was based on allegations of fraud and undue influence and was originally begun by the father himself. On his death the litigation was carried on by his executrix, and also by three brothers and a sister of the defendants.
The outstanding facts were these: John Pusch and his wife came from Germany many years ago, settled in Wabaunsee county, and reared a large family. He acquired 200 acres of land and the usual chattels of a Kansas fanner. His wife also acquired some land in her own right. John never learned to speak, read, or write the English language with understanding or facility. His wife was his spokesman in business transactions until her death in 1910. Ere then the children had grown to maturity, and all had established homes of their own except Emma and Joseph. The latter two continued to reside with their father in the family homestead, as did also the wife and children of Joseph.
In 1915, three deeds apparently executed by John Pusch conveying the 200 acres in three’separate tracts to Emma and Joseph were placed on record. At that time, John Pusch was eighty years old, and long prior thereto his activities as a farmer and otherwise had ceased. He was accustomed to stay about the house and rarely went to town. In 1922 Emma died, bequeathing all her interest in these lands to Joseph. Early in 1924, John Pusch left his farm home and took up his abode with his daughter, Mrs. Mary Murphy, and shortly thereafter this action was begun. The petition charged fraud and undue influence on the part of the grantees in obtaining the deeds to the father’s lands. The father’s deposition was taken in May, 1924, and he died the following July ere the action was brought to trial.
There were two actions in the court below — one to set aside a deed from John Pusch to Joseph Pusch to 40 acres, to set aside a similar deed to Joseph and Emma for 120 acres, and to set aside a deed to another 40 acres; the other action was to set aside the will of Emma Pusch. Involved therewith were separate causes of action for rents and profits of no present concern. The action to set aside the will of Emma was abandoned and a decision therein was entered in favor of defendants. The trial court found tha,t the deeds were procured by the fraud and undue influence of Joseph and Emma, and judgment setting them aside as entered in favor of plaintiffs.
Defendant Joseph Pusch appeals, urging certain errors, the first of which relates to the overruling of his demurrer to plaintiffs’ evidence. That evidence tended to show that John Pusch did not know he was making deeds to his lands but supposed he was signing certain papers which had to do with making him a citizen of the United States, and some papers which he thought had to be sent to Germany. An effort was made to show that a consideration in money and mortgages passed from the grantees to the father, but in view of the fact that the aged father had no money and no property of any sort on a certain March day, 1924, when at 89 years of age he was invited by Joseph to get out or go to the poorhouse, it is not surprising that the trial court gave no credence to defendants’ attempt to show a consideration for the conveyances. All the circumstances, the situation of the parties, the father’s dependence and reliance on Joseph and Emma, his want of understanding of English, and the fact that between the death of their mother in 1910 and March, 1924, the father’s lands had passed into their hands, and all his chattels had been disposed of and the proceeds had vanished, and the estates of Emma and Joseph had correspondingly increased— these and other probative incidents made too strong a case to be ■disposed of by defendant’s demurrer to the evidence and quite justified the judgment entered in plaintiff’s behalf.
Defendants contend that the action was barred by the two-years’ limitation of the statute of frauds. (R. S. 60-306.) They argue that the evidence conclusively shows that John Pusch knew he had deeded his lands to the grantees shortly after the purported execution of them, August 20,1915, which was some nine years before this action was begun. This court is not at liberty to attach such a convincing quality to the evidence relied on by defendants. The father was 80 years old when the deeds were made; he could not read English; he did not and could not read the newspapers which contained the brief news items touching the purported conveyances; the official records meant nothing to him; and the trial court was not bound to believe the testimony of any particular witness adduced in defendants’ behalf, not even that of the scrivener or the notary who took the father’s acknowledgment. The notary’s testimony 'did not go far towards proving that the father understood what he was about. In part, it reads:
“A. After he signed the deeds, I asked him ... if he acknowledged the execution of them.
“Q. You don’t know whether he understood you or not? A. No .sir, I suppose he did; he nodded his head.”
It is elementary both by express statute and in principle that the time given in which to commence an action for relief on the ground of fraud does not begin to run until the fraud is or reasonably could be discovered, and the record contains nothing which would constrain this court to declare that the father did discover or reasonably could have discovered that he had parted with the title to every acre of land he possessed at any time prior to that March day in 1924 when his son Joseph so informed him in an angry altercation. A brother's testimony, in part, reads:
“Joe says, ‘If you don’t be careful, I will put you in the poor farm.’ Father says, ‘You can’t do that; this property belongs to me.’ Joe says, ‘You haven’t got a darn thing,’ ‘It all belongs to me, number one.’ Father cried, He says, ‘If this is the case, I am going to Mary or some, place where I can find out; you haul me down.’ Joe says, ‘The roads are wide, walk it.’ ”
Since the trial court was not bound to believe the evidence adduced by defendants which tended to show notice and knowledge on the part of the father several years before the action was begun, and plaintiffs’ evidence, to which the court did give credence, was quite to the contrary, the action was not barred by the statute of limitations.
An alleged irregularity of practice is intimated. Defendants’ counsel assert that they had no notice of a hearing of their motion for a new trial on January 8, 1927, which was the last day of the official term of the trial judge, and that they were deprived of an opportunity to present certain newly discovered evidence. But there was no hearing of any motion for a new trial on that date. That hearing had taken place some months before. All that happened on January 8, 1927, was the announcement of the trial court’s decision on defendants’ motion for a new trial which the court had held under advisement for some months, following its presentation on written briefs of the parties during the summer of 1926.
An ill-advised error assigned by defendants is that the trial court overruled their motion for a new trial outside his judicial district. The record does not support this point; it is abandoned in defendants’ brief; but in lieu thereof it is next insinuated that when the trial judge went to Osage county for the purpose of overruling defendants’ motion he went in company with the attorney for plaintiffs, thereby committing some supposed breach of judicial propriety. So far as the record shows, this, too, is a groundless aspersion against which the long and honorable career of the venerable trial judge should have securely protected him.
Neither error of law nor miscarriage of justice appears in this record, and the judgment is affirmed. ' | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, claiming to be the owner and in possession of 560 acres of land in Finney county, commenced this action to quiet his title thereto against the defendant bank, which in its answer claimed to own the real property by virtue of a sheriff’s deed issued for the sale of the property in an action wherein the defendant bank was plaintiff and E. A. Brown, a son of the plaintiff, was defendant, in which action the real property had been attached at the suit of the bank to secure the payment of a note of $7,000 signed by E. A. Brown and owned by the bank. The defendant bank, in its answer in the present action, alleged that the property was owned by E. A. Brown, and that it had been fraudulently transferred by him to the plaintiff to hinder and delay the People’s State Bank of Garden City in the collection of the note, which bank subsequently went into the hands of a receiver, was reorganized as the Fidelity State Bank, which latter bank succeeded to the rights of the People’s State Bank under the note.
A jury answered special questions as follows:
“1. At the time E. A. Brown purchased the NW% of section 14, in township 22, range 35, at sheriff’s sale, on the 2d day of February, 1920, did he have in his hands funds belonging to the plaintiff of this action, equal to or exceeding the amount he paid for said land? A. Yes.
“2. Did the said E. A. Brown have the land described in question No. 1, conveyed to the plaintiff in this action, for the purpose of hindering, defrauding or delaying any creditors of the said E. A. Brown? A. No.
“3. Was E. A. Brown indebted to the plaintiff in this action, in the month of January, 1925, and if so in what amount? A. No.
“4. If jmu answer question No. 3 in the affirmative then did the said E. A. Brown execute the deed which has been introduced in evidence for the purpose of satisfying his indebtedness to the plaintiff? A.-.
“5. Did the said E. A. Brown execute the deed to the plaintiff, which has been introduced in evidence, for the purpose of hindering, defrauding or delaying the creditors of the said E. A. Brown? A. Yes.”
The findings of the jury were adopted by the court. Judgment was rendered in favor of the plaintiff, quieting his title to 160 acres of the land in controversy, and in favor of the defendant for the remainder of it. The plaintiff appeals. Only 400 acres of the 560 acres of land are involved in this appeal.
The plaintiff moved to set aside findings numbered 3 and 5—
“I. Because said findings and each of them are not supported by the evidence, and are contrary to the evidence.
“II. Because said findings and each of them were made by the jury under a misunderstanding and misapprehension of both the law and the facts, the said jury in making said findings and each of said findings being led 1° believe that if the effect of the conveyance referred to in finding No. 4 was to hinder or delay the defendant in the collection of its said debt, it was thereby rendered fraudulent without regard to the intent of the parties thereto.”
The only question argued is, in effect, the sufficiency of the evidence to support findings numbered 3 and 5, and to sustain the judgment of the court as to the 400 acres of land. There was evidence which tended to prove that E. A. Brown owed to the People’s State Bank of Garden City $7,000 and interest thereon on a note signed by him and given to that bank; that on August 13, 1924, the People’s State Bank commenced an action against E. A. Brown to recover on the note, and attached the real property in controversy; that on January 19, 1925, while that action was pending, E. A. Brown, for a named consideration of one dollar and other good and valuable considerations, conveyed the 400 acres of land to the plaintiff; that that action was dismissed on May 15, 1925; that the defendant, by a reorganization of the People’s State Bank, succeeded to the rights of the latter under the note; that, on February 4,1926, the defendant commenced another action against E. A. Brown, and attached the real property in controversy; that the later action was prosecuted to judgment; that the real property was sold thereunder to the defendant bank; that the deed by which it claims to own the real property was then executed to it by the sheriff; and that the plaintiff was the father of E. A. Brown. The testimony given by E. A. Brown that he made the deed to pay on a debt which he owed the plaintiff was such, although uncontradicted, as justified the jury in answering question No. 3 as it did. Whether or not the evidence showed that the conveyance had been made in fraud of the rights of the holder of the note as a creditor of E. A. Brown, was for determination by the trial court. The findings were sustained by the evidence and warranted the judgment that was rendered.
The judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of violating the prohibitory liquor law and appeals.
There was evidence showing that defendant worked in a barber shop operated by his brother; that on May 25, 1926, one Johnson, a customer in the barber shop, conversed with defendant concerning the possible purchase of whisky; that later in the day Johnson went to defendant’s home and was taken by the defendant to the home of one Nate Williams; that Johnson purchased a half pint of whisky from Williams, paid for it, and gave some to defendant; that defendant and Williams shot craps for a while, when Johnson purchased another half pint and gave defendant another drink; that after drinking the second course of whisky Johnson became unconscious ; that when he regained consciousness he was at a tent in the fairgrounds near Parsons; that at the time of going to the Nate Williams place, Johnson had upon- his person something like $37; that he paid $1.25 for each half pint of whisky, loaned $10 to the defendant with which to shoot craps, shot 50 cents himself; that when he regained consciousness he had but 65 cents. There was evidence that the defendant and Williams had agreed to “cut them up,” by which expression it was meant that the defendant and Williams would divide the profits of the whisky and crap game half and half. The defendant was charged with the sale of whisky, also with the maintenance of a nuisance, the state proceeding upon the theory of a conspiracy between the defendant and Williams.
The defendant contends that there was no evidence to sustain the charge of his having sold whisky or having maintained a nuisance. Without further detailing the evidence, we are of opinion it was sufficient to show a conspiracy upon the part of the defendant and Williams, a sort óf partnership arrangement by virtue of which the defendant brought the customers to the place of sale, aided and abetted in the transaction, and partook of the proceeds resulting therefrom.
Contentions that the court erred in the-admission of evidence of the character of the place where defendant worked, in the giving and the refusal to give instructions, have been considered, but cannot be sustained. Other objections to the judgment have all 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
Harvey, J.:
Appellant was convicted of the violation of R. S. 21-2101. His sole complaint is that the court refused to grant a new trial. One Cecil Comstock was one of the material witnesses for the state at the trial, but he was not the only witness on any material point. In support of defendant’s motion for a new trial, Gomsto.ck made an affidavit that the testimony he had given against defendant at the trial was false, explaining in detail how it came about that he had given the false testimony. These details were controverted by affidavits. In this situation appellant contends that it is the function of the jury to weigh the testimony, and that there was nothing for the court to do but to grant a new trial. This contention cannot be sustained. The court, not the jury, passes on the motion for a new trial, and any evidence offered in support of it. Obviously, a court is not compelled to give credence to false testimony offered in support of a motion for a new trial. One who re cants his sworn testimony in court necessarily raises a serious question as to his own veracity. In 16 C. J. 1188, the rule is thus stated:
“But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.”
To the same effect is 20 R. C. L. 299.
Appellant cites and relies on State v. Keleher, 74 Kan. 631, 87 Pac. 738, and State v. Mounkes, 91 Kan. 653, 138 Pac. 410, but neither of these cases, fairly considered, sustains his contention. In the Mounkes case no witness recanted his testimony, but on the hearing of the motion for a new trial .it was established, with no room for reasonable doubt, that material evidence on behalf of the prosecution was false, and a new trial was ordered, for the simple reason that a trial court should never approve a verdict induced by false testimony. In the Keleher case a material witness for the prosecution recanted his testimony, and under such circumstances that there was good reason to believe that the statements made in the recantation were true and that the testimony previously given was false. Under such circumstances a new trial was properly ordered. Here the situation is just the reverse; all the facts and circumstances of the case, the evidence on the trial and in the affidavits presented by the prosecution on the hearing of the motion for a new trial, quite clearly demonstrated that the statements in the recanting affidavit of Comstock were false, and that his testimony given at the trial was true. In this situation is was the duty of the court to refuse a new trial.
The judgment of the court below is. affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This is an original proceeding in habeas corpus wherein Floyd Hippie, a.resident citizen of Hutchinson, seeks to obtain the custody of his two small children now with their mother, Lulita Hippie, who resides in Wichita.
The pertinent facts axe these: In June, 1925, the parents, Floyd and Lulita Hippie, then residents of Hutchinson, Reno county, were divorced. Lulita was given the custody of their three children, Miriam, Betty Jean and Francis Byron. The eldest daughter,Miriam, presumably because she was of an age which privileged her to choose her own guardian, continued to make her home with her father, the petitioner herein. The petitioner’s fine modern ten-room, well-furnished family residence, situated in spacious grounds in a restricted district, close to school and church and to a city park, was set apart by the court as a home for the children, together with a monthly allowance of $100 to the mother for their maintenance, and the mother was given the privilege of residing in the home thus provided so long as she remained unmarried, and she was also awarded $150 per month on her own behalf as alimony. The father was permitted to visit the children at reasonable intervals, and he was required to pay the taxes and insurance on the home and keep it in repair. (See Hipple v. Hipple, 121 Kan. 495, 247 Pac. 650.)
That arrangement was followed until early in 1926, when the mother went to Excelsior Springs for two months, leaving the two children in their father’s care. Later, in the summer, of 1926, the mother took the two children to Peck, in Sumner county, and a month later to Wichita, where she rented an apartment of two rooms and a kitchenette and set up housekeeping therein for herself and the children, and had them enrolled in the Wichita city schools.
The father complained of this to the district court, and that court dispatched the sheriff of Reno county to Wichita to bring the children back to their Hutchinson city home. He was halted with a writ of habeas corpus issued by one of the judges of the Sedgwick county district court at the instigation of the mother. Before this latter judge the father also sued out a writ of habeas corpus for the possession of the children, setting up the Reno county judgment and certain supplementary orders of that court. The two cases were heard together and judgment was entered in favor of the mother.
To speedily determine the best interest of these children, which manifestly is in danger of being lost sight of in the hostile and litigious proclivities of their parents, and to put a summary quietus on what bids fair to develop into a scándalous conflict of jurisdiction of district courts, the original and paramount jurisdiction of this court is invoked.
It must first be noted that the father’s rights were as securely determined by the divorce decree as those of respondent. He was entitled to have the children reside where he could conveniently and frequently visit them. He yielded without protest to that part of the decree which divested him of the title to his Hutchinson residence because it was satisfactory to him to have it set apart to be his children’s home, where it would be convenient for him to associate with them at seasonable times, although such divesting of his title could certainly have been invalidated by appeal. (Emery v. Emery, 104 Kan. 679, 180 Pac. 451; Melton v. Every, 105 Kan. 255, 182 Pac. 543.) The father also shows that he has observed the monetary terms of the judgment for the children’s maintenance and the monthly payments of alimony; and the circumstances tend persuasively to show that the taking of the children to Wichita where they were housed in a small apartment greatly inferior to the home provided for them by the order of the Reno county district court, and in which they have been reared hitherto, is not for their welfare nor to serve their best interests. Moreover, it is to their detriment that the children are kept so far away from their father and their elder sister, for, notwithstanding the divorce of the parents, the ties of intimacy and association with their father and sister should be cherished factors in the matter of their correct upbringing. Furthermore, it savors strongly of ill-advised conduct on the part of the respondent that when the father came to Wichita to gratify his natural inclination towards the society of his children, she repeatedly caused his arrest on groundless charges of abandoning his children and failing to support them. The affidavit of the clerk of the district court of Reno county shows that all monthly payments for the children’s maintenance, as well as respondent’s monthly alimony, were promptly and regularly paid.
On behalf of the respondent mother, the two judgments of the third division of the district court of Sedgwick county are set up in her return to our writ, and she offers the excuse for taking the children away from their home that the father had the habit of coming to the Hutchinson home in an intoxicated condition, that he offered violence to her person, broke her arm, and used profane language in the presence of herself and the children, for which alleged reasons she had removed her abode to Wichita and had taken the children with her. The matters thus averred to compose this excuse are not convincing. The respondent has not hitherto manifested any peculiar meekness of disposition which would justify an inference that she would submit to any such impositions by this petitioner. Nor can we countenance an inference that the district court of Reno county, its peace officers, or prosecuting attorney, would tolerate any such misconduct on the part of the petitioner as that averred by respondent. She does not even now suggest that she ever made any complaint of the petitioner’s alleged misconduct.
Upon an order whose validity the mother disputes for want of notice, want of jurisdiction, etc., the Reno county district court changed the custody of the children from the mother to the petitioner. They have a sister, Miriam, the petitioner’s seventeen-year-old daughter who resides with her father, who is capable of assisting him in caring for and rearing the children and well-disposed to do so.
This being an original proceeding in this court we must appraise all these circumstances, as well as the showing of facts adduced by the litigants. There is no material issue of law in this action. Counsel for petitioner claim rather too much for the continuing jurisdiction of the district court. Whether through want of power or otherwise it did not make effective its order that the children be restored to their Hutchinson city home. And the petitioner did not make any effective challenge of the jurisdiction of the Sedgwick county court. Indeed, he himself eventually invoked its jurisdiction. Nor can we attach much weight to the orders of the district court of Sedgwick county. Manifestly those orders were but temporary. To hold otherwise would raise an inference that that court was disposed to set at naught important features of the judgment of the district court of Reno county. It made no order touching the children’s right to reside in their own home in Hutchinson or their right to the society of their sister or to that of their father on reasonable occasions. The third division of the district court of Sedgwick county, or its judge, settled nothing except that at the time the sheriff of Reno county and the petitioner came to Wichita armed with the orders of the Reno county district court, on the showing then and there made it would not order that the mother be deprived of the custody of the children. Right or wrong, that decision is of no great consequence at this time.
This court holds that the excuse of the father’s alleged drunkenness, profanity and violence, if true, did not warrant the respondent in taking the children from their home. We think the matter of immediate and paramount concern in this lawsuit is that these two children be promptly returned to their home in Hutchinson, and the order of this court will be to that effect. But the court is reluctant to deprive the mother of their custody, and for the present it will not do so if she is disposed to return with them to their home in Hutchinson. Neither is the court convinced as to the father’s al leged unfitness to have the custody of the children, so if the mother does not choose to return with them to their home it will be this court’s order that the custody qf the children be transferred from the mother to the father. If the mother returns with the children to the Hutchinson home, the father will be privileged as heretofore to visit them at reasonable intervals, to wit: twice a week in the daytime, at which specified intervals he may take them to places of amusement and automobile riding. And it will be the further order of this court that if hereafter the mother shall have any reasonable basis to complain against the petitioner on account of drunkenness, violence or profanity during his visits to the children, or by disturbing her peace in any other fashion, she may invoke such redress as this court, or the police authorities or the courts of Reno county can afford.
The respondent makes a request for a monetary allowance to pay her expenses in this lawsuit. She has no claim on this petitioner which would require or permit her to conduct this litigation at his expense. He is not her husband; he owes her nothing; and her request is denied.
For the present this court will retain jurisdiction of this cause for such other or further orders as events shall justify.
It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in habeas corpus brought by Fred Hollis, of Saline county, against J. B. Archer, probation officer of that county, and M. C. Brownell, of the same ■county, for the liberty and the care and custody of Raymond Edward Hollis, a minor son of the petitioner, also a resident of Saline county and between four and five years of age. The petition states that the child is being illegally held and unlawfully restrained of his liberty by said respondents by virtue of an order of the juvenile court of said county issued on May 12, 1927, wherein and whereby the said respondent probation officer was given charge and control of ■said minor as a dependent and neglected child and was directed to place the said minor in the home of the respondent M. C. Brownell.
The return of the respondents recites at great length the various proceedings in the juvenile court referred to in the petition. The petitioner bases his proceeding in this court upon the want of jurisdiction of the juvenile court because of the insufficiency of the petition filed in that court by M. C. Brownell, upon which that court assumed jurisdiction of the subject matter, claiming that it consisted of conclusions only, instead of statements of such facts as are necessary to give jurisdiction. Although the return of the respondents outlines and narrates numerous transactions and incidents alleged to be facts, yet this court in the jurisdictional question here and now submitted will not be concerned as to their truthfulness or falsity. Counsel for petitioner and respondent both agree that the matter to be determined in this case is purely a question of law, viz., was the petition filed in the juvenile court sufficient to give that court jurisdiction of the subject matter?
Before taking up that main question let us consider two preliminary points raised by the respondents. First, it is claimed that the petitioner consented to the jurisdiction of the juvenile court and waived his right to object thereto by his appearing before that court in his own behalf and in that of the minor child without objecting to the jurisdiction or raising any question as to the sufficiency of the petition until the trial therein was nearly completed. It has been well settled that the failure to object to the jurisdiction of an inferior court over the subject matter before going to trial is not a waiver of the right to object later.
“One held as for contempt under an order made without jurisdiction need not first raise the question of the jurisdiction of the court or judge making the order before such court or judge, but may do so in an independent proceeding in habeas corpus.” (In re Jewett, 69 Kan. 830, syl ¶ 2, 77 Pac. 567.)
It is also contended by the respondents that habeas corpus is not a proper proceeding to test the jurisdictional question, since the case has been tried in the inferior court and an appeal has been taken to the district court — that it is in effect an appeal to this court instead of an appeal to the district court where the appeal is now pending. Want of jurisdiction is always a ground for relief by habeas corpus (29 C. J. 30), and we think that habeas corpus is a right and privilege where a jurisdictional question is involved, even if an appeal is pending in another court, and particularly where it is claimed that the judgment is void, as is claimed in this case. ’
“Under the facts of this case the judgment and sentence of the court are unauthorized by law and.are void, and section 5167 of the General Statutes of 1901 does not forbid inquiry into the same in a habeas corpus proceeding.” (In re Spaulding, 75 Kan. 163, syl. ¶ 3, 88 Pac. 547. See, also, In re Norton, 64 Kan. 842, 68 Pac. 639; In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39.)
There is no question but that the probate court or juvenile court is clothed with jurisdiction of the subject matter of such cases if properly invoked by a legal and sufficient petition.
“That there be and hereby is created and established in each county of the state a court to be known as the ‘juvenile court’ whose jurisdiction shall pertain to the care of dependent, neglected and delinquent children. The probate judge of each county shall be the judge of the juvenile court in his county. . . . Said court shall have jurisdiction of all cases concerning dependent, neglected and delinquent children in their respective counties. . . .” (R. S. 38-401.)
In order to have fully in mind the purposes of the act giving such power to the juvenile court, to whom it applies and how it is administered, reference is here made to two other sections of the act above cited.
“This act shall apply only to children under the age of sixteen years, not now or hereafter inmates of any state institution or any industrial school for boys or industrial school for girls or some institution incorporated under the laws of this state. . . . For the purpose of this act, the words ‘dependent child’ and ‘neglected child’ shall mean any child who for any reason is destitute or homeless or abandoned, or dependent upon the public for support, or has not proper parental care or guardianship, and has idle and immoral habits, or who habitually begs or receives alms, or who is found living in any house of ill fame or with any vicious or disreputable persons; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such a child. . . .” (R. S. 38-402.)
“The juvenile court having jurisdiction under this act shall appoint or designate one or more discreet persons of good character to serve as probation officers during the pleasure of the court. . . .” (R. S. 38-403.)
The section which concerns us most in this case is entitled, “Complaint by Petition”:
“Any reputable person, being a resident of the county, having knowledge of a child in his county who appears to be either dependent, neglected or delinquent within the meaning of this act, may file with the court having jurisdiction in the matter a petition in writing setting forth the facts, verified by affidavits.” (R. S. 38-404.)
Subsequent sections provide in detail for the proceedings under this act, including ample opportunities for appeal and review by the district court.
One other section of the act deserves our special consideration and that directs a liberal construction to be made of the act.
“This act shall be liberally construed, to the end that its purposes may be carried out, to wit, that the care, custody and discipline of a child shall approximate, as nearly as may be, proper parental care; and in all cases where the same can be properly done, that a child may be placed in an approved family home, by legal adoption or otherwise. . . .” (R. S. 38-415.)
The following is a .copy of the petition filed in the juvenile court of Saline county, April 16, 1927, by the respondent M. C. Brownell:
“Petition foe, Dependent and Neglected Child.
State of Kansas, Saline County, ss.
IN THE JUVENILE COURT OF SAID COUNTY AND STATE.
“In the matter of Raymond Edward Hollis, a dependent-neglected child.
“I, M. C. Brownell, a reputable citizen of Saline county, state of Kansas, being first duly sworn, say: That Raymond Edward Hollis, who is under the age of sixteen years, is not now an inmate of any state institution or any industrial school for boys or industrial school for girls, nor any institution incorporated under the laws of the state of Kansas.
"That said child is dependent; has no proper parental care or guardianship and is neglected, and his father, Fred Hollis, is an unfit person to take care of said child, in violation of the statutes of the state of Kansas, in such case made and provided, and against the dignity of the state of Kansas.
“Affiant further says, that the facts stated and allegations contained in the foregoing petition are correct and true, as he is informed and verily believes.
“M. C. Brownell.
“Subscribed in my presence and sworn to before me, this 16th day of April, 1927. Will F. Miller, Probate Judge.”
(Seal.)”
Does the petition comply with the requirements of the statute as to “setting forth the facts” ? If it does not, the petition is insufficient and will not give the juvenile court jurisdiction of the subject matter, and the judgment giving the custody of the child will be void. In the first place, the same exactness of pleading is not required in inferior courts. (Galbraith v. M’Cormick, 23 Kan. 706.) Again,
not all general, vague and indefinite terms are conclusions as distinguished from statements of facts, especially when the language •of the statute is followed. Unless the language of the statute is technical or too comprehensive, as including some innocent acts, it does state facts, that is, the ultimate facts, and as a general rule this is sufficient. (31 C. J. 713.)
“An information charging the defendant with knowingly receiving deposits in a bank of which he was an officer when it was insolvent is good against a motion to quash, although it does not state which of the three conditions •existed that are declared in another section of the same statute to constitute insolvency.” (State v. Elliott, 122 Kan. 174, syl, 251 Pac. 423.)
In the opinion it is said:
“We hold the information to be good, however, upon the broader ground that it sufficiently advised the defendant of the nature of the charge against him to enable him to prepare his defense, and no substantial prejudice to him is shown to have resulted from the lack of a fuller statement. The information charges the offense essentially in the language of the section of the statute creating it. The definition of the term ‘insolvent,’ given in another section by a later enactment, adds somewhat to its former meaning, but the addition is not out of harmony with its general scope.” (p. 175. See, also, State v. Teissedre, 30 Kan. 476, 2 Pac. 650.)
The same proposition has been decided as to petitions in civil actions being insufficient to the effect that the judgments based thereon are not necessarily void.
“Where a court has jurisdiction of the subject matter of an action and of the parties, a petition which alleges sufficient facts to challenge the attention of the court as to its merits, and to authorize the court to deliberate and act, is sufficient to sustain a judgment rendered in the action upon 'evidence, as against a collateral attack on the ground that the judgment is void; and this although the petition may have been demurrable on the ground that it did not state facts sufficient to constitute a cause of action.” (Wyandotte County v. Investment Co., 80 Kan. 492, syl., 103 Pac. 996. See, also, McPherson v. Martinson, 115 Kan. 828, 224 Pac 907; Pattison v. Kansas State Bank, 121 Kan. 471, 247 Pac. 643.)
There is no middle ground on which to stand in this case. The writ should not be issued unless the judgment rendered by the juvenile court is absolutely void. Because of the liberal rule of pleading permitted and practiced in inferior courts, and because the language of the statute was used without any technical, vague or indefinite terms, we think the ultimate facts were plainly alleged instead of conclusions, and the judgment is therefore not void.
The writ is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
Felix Winters appeals from a conviction' on .one count of unlawfully having possession of intoxicating liquor; on a second count of having sold intoxicating liquor, and on both counts of being a persistent violator of the prohibitory liquor law.
The defendant contends that he had no preliminary examination on the second count. He was charged therein with having sold intoxicating liquor in January, 1927, and “having theretofore, on the 22d day of August, 1925, in the justice court of J. W. Martin, a justice of the peace in and for the city of Winfield, Cowley county. Kansas, been convicted of a violation of the prohibitory liquor -law of the state of Kansas.”.
It appears that the words, “in and for the city of Winfield,” got into the original complaint, warrant and information through a typographical error. They were not observed by the. state at the time of defendant’s preliminary examination, 'no question being raised by defendant at that time. After the information had been filed by the state, the mistake was discovered, and on motion by the state the superfluous words were by the court stricken out. The defendant thereupon filed a plea in abatement, contending that he had had no preliminary examination on the second count as it then stood. The record shows that the defendant pleaded guilty before J. W. Martin, justice of the peace in and for Arkansas City, Cowley County, Kansas, in August, 1925. The defendant, and able counsel representing him, both knew the justice of the peace referred to was one in and for the city of Arkansas City in Cowley county, so that defendant was in no way injured or prejudiced by the clerical error.
A contention that the judgment of defendant’s former conviction was not sufficiently shown cannot be sustained. The abstract before us shows the testimony of J. W. Martin, justice of the peace.
“Q. Have you a record of a conviction of one Felix Winters, some place? A. Yes, sir: the 63d page.
“State offers in evidence the permanent record of the justice of the peace, J. W. Martin, entitled ‘Criminal docket’ page 63, more particularly the case of the State of Kansas v. Felix Winters, wherein Felix Winters pleaded guilty to the possession of intoxicating liquor. That is offered as to the first count of this information.
“Court: All right.
“State now makes the same offer as to the second count of the information.
“The defendant objects for the reason that he has had no preliminary hearing as to the second count.
“Court: You don’t object to the competency of the record?
“Mr. Hines: I am not objecting to the competency of the record. I am objecting to the competency of what the record says.
“Court: Because of the fact that you claim he didn’t have a preliminary?
“Mr. Hines: Yes, because the preliminary was on a different proposition. It is admitted that this record shows that he plead guilty to having liquor in his possession, in Martin’s court, August 22, 1925.”
The abstract also shows the following admissions by the defendant:
“Q. You were arrested in August, 1925? A. Yes, sir.
“Q. And you plead guilty? A. Yes, sir: plead guilty.
“Q. Who arrested you at that time? A. John Morain.
“Q. How many jugs of liquor did you have at that time? A. I think three.
“Q. You have been arrested in Oklahoma for possession of liquor, haven’t you? A. Yes, sir.
“Q. Did you run away from down there while you were serving time? A. Yes, sir.
“Q. You got'thirty days and two hundred dollars down in Oklahoma? De- • fendant objects for the reason that it is immaterial. He has admitted that he was convicted.
“Q. You got thirty days and two hundred dollars? A. Yes, sir.
“Q. You appealed to the criminal court of appeals in Oklahoma? A. Yes, sir.
“Q. The case was affirmed, was it not? A. I suppose it was.”
A technical objection that admission of a conviction was not sufficient in showing the judgment was rendered cannot be sustained. A record and admission of previous conviction under the prohibitory liquor law presupposes entry of the judgment of conviction. Failure of the court to enter a judgment of conviction might be shown in defense. The evidence adduced in the instant case was sufficient to support the jury’s verdict that defendant was a persistent violator. (See, State v. Bizer, 113 Kan. 731, 216 Pac. 303; State v. Colopy, 120 Kan. 220, 242 Pac. 1016.)
The contention is made that the court erred in receiving the verdict of the jury finding the defendant guilty of two distinct offenses; that is, that he was convicted of being a persistent violator on both counts of the information, also that he was sentenced for both offenses. The defendant appears not to have been prejudiced in anywise for the reason that the sentences (one year on each count) were made to run concurrently.
Various other objections to the judgment have been considered, but none are sufficient to warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in replevin by a mortgagee. A Mrs. Zillman owned and operated a café in Garden City. On November 13, 1925, she mortgaged the' furniture and fixtures in the café to plaintiff to secure indebtedness to him of $1,725. Plaintiff did not record this mortgage until May 22, 1926. By that time Mrs. Zillman had become indebted to the bank $220 on her note, and to H. M. Knox $300, and R. M. Wilkins $64.20 on account. About June 1, 1926, Mrs. Zillman apparently abandoned the café and left Garden City. On June 3 the bank, Knox and Wilkins sued on their respective claims in justice court and attached the furniture and fixtures in the café. Plaintiff then brought this action against the- constable and attaching creditors. At the trial, by agreement, a jury was called to answer special questions only. They answered questions as follows:
“1. Did the defendants or any of them, extend credit to Mrs. Zillman after the date of the execution of the plaintiff’s note and chattel mortgage, without knowledge of such note and mortgage, and relying upon the belief and appearance that Mrs. Zillman was the owner of said mortgaged property, subject only to the balance due to Mr. Garnand? A. Yes.
“2. At the time the plaintiff took the note and chattel mortgage from Mrs. Zillman on November 13, 1925, was Mrs. Zillman insolvent? A. Yes.
“3. If you answer question number 2 in the affirmative, then did plaintiff know that she was insolvent? A. No.
“4. Did the plaintiff agree with Mrs. Zillman that he would not record his chattel mortgage until there was danger of suits by creditors? A. Yes.
“5. Did the plaintiff file his chattel mortgage before he knew there was danger of suits being brought by creditors of Mrs. Zillman? A. No.
“6. Did the plaintiff take his chattel mortgage for $1,725, dated November 13, 1925, in good faith? A. Yes.
“7. Did the plaintiff withhold the recording of his chattel mortgage so taken, for the purpose of deceiving or injuring the defendants or any of them? A. Yes.
“8. Did the plaintiff withhold his mortgage from record for the purpose of aiding Mrs. Zillman’s credit? A. Yes.”
The court modified the jury’s finding No. 7 by finding that the mortgage was withheld with the intent and for the purpose of avoiding injury to Mrs. Zillman’s credit and to conceal from the public generally the extent of her indebtedness without any reference particularly to the defendants. Judgment was rendered for plaintiff. Defendants have appealed..
Appellants contend that plaintiff’s withholding the chattel mortgage from record, under the facts found, was a fraud upon them and estops plaintiff from claiming a lien prior to this attachment lien. On this point they cite 23 R. C. L. 240; Belcher v. Curtis, 119 Mich. 1; Hagerty v. Goodland, 70 Kan. 734, 79 Pac. 664, and allied authorities. Without analyzing these authorities, though such analysis perhaps would reach the same result, we conclude that the question is controlled by our recording statute (R. S. 58-301), the pertinent portion of which reads:
“Every mortgage . . . shall be absolutely void as against the creditors of the mortgagor, . . . unless the mortgage . . .” is recorded.
The “creditors of the mortgagor” mentioned in the statute include only those having some specific lien upon, or right to, the mortgaged property. The term does not embrace mere general creditors. (Youngberg v. Walsh, 72 Kan. 220, 83 Pac. 972.) See, to the same effect, Geiser v. Murray, 84 Kan. 450, 455, 114 Pac. 1046; Bank v. Walters, 92 Kan. 391, 393, 140 Pac. 864, and Big Four Implement Co. v. Wright, 207 Fed. 535, applying the Kansas statute.
Applying our statute as interpreted by the above authorities to the facts found in this case, it is clear that plaintiff owed defendants no duty to record his mortgage, so long as they were merely general creditors, having no liens upon, or rights to, the possession of specific property in question. Defendants acquired no such lien or right of possession until they made their attachment levies, which was June 3. Plaintiff’s mortgage had been recorded prior to that date. Being first in time, plaintiff’s was a lien upon the property prior to lien of defendants. .
There is no reason for disturbing the judgment of the court below, and it is affirmed.
Hopkins and Hutchison, JJ., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the plaintiff, J. C. Nichols, asked for the specific performance of a contract alleged to have been entered into with the defendants, Ralph C. Coppock and Alberta Coppock, for the sale of about twenty-six acres of land situated in Johnson county near what is known as the Shawnee Mission. The result of the action depends on the sufficiency of the plaintiff’s amended petition, which sets forth the alleged contract consisting entirely of letters and telegrams. A demurrer of defendants was sustained, the court holding that the pleading did not state a cause of action nor warrant the relief asked. The correspondence between the parties, which continued from June 21, 1924, to about March 1, 1925, related mainly to a sale of the south half of the tract owned by Coppock. The plaintiff, acting in the capacity of agent, was asked to obtain this part of the tract for the Mission Hills Golf Club, and after reciting what other tracts of land had been sold for in the neighborhood, advised the .defendants to sell that portion of the tract at $1,000 an acre. He -argued with defendants that the sale and improvement of the south half would benefit the remaining north half, and offered to cooperate • with the defendants in the platting and disposing of the north, half in case a sale of the other part was made. Coppoclc at first declined to fix a price, as he had given his brother the right to sell the land until November 1, 1924. After a number of letters had passed between them, Coppoclc, on January 28, 1925, proposed to sell the south half at $1,250 per acre upon terms that were mentioned. The plaintiff responded that the price named was too high, and in another letter on February 14, 1925, he urged again the sale at the price of $1,000 an acre. A response to this letter was made on February 16,1925, stating-that they had decided not to sell one-half of the land unless they got the quoted price, namely, $1,250 per acre. In case a purchase was made at that price he stated he would have the terms “one-sixth cash, and the balance in four equal annual payments, with interest at six per cent, payable semiannually, the first payment falling due the date of sale,-: 1928, the balance in', each succeeding year.” On February 21, 1925, plaintiff wired that it would be impossible to interest the club at $1,250 per acre, and then aslced defendants to wire the best price they would take for the entire tract so that plaintiff could offer the club approximately one-half at less price and retain the balance. The terms, he stated, were satisfactory, and he asked defendants to please make him a reasonable price on the entire tract. On February 25, 1925, the defendants telegraphed to plaintiff:
“Wire received. I am not anxious to sell especially north half, but from you will take $34,000 for the entire piece, being about the same rate as I priced the south half, with easy terms. If interested I will come. Must know soon on account of lease.”
On February 26, 1925, the plaintiff sent the following telegram:
“Accept your proposition. Hope you come immediately. Am planning to leave for Florida Tuesday. Wire date of arrival.”
Two days later the defendants wired: “Cannot be in Kansas City before next Friday or Saturday.” On March 7,1925, the defendants came to Kansas City and in an interview with plaintiff, plaintiff demanded that defendants furnish an abstract of title and a deed to the real estate and offered to pay defendants $5,666.67, being one-sixth of $34,000. The defendants refused to complete the tráñsac tion. At the close of the interview defendants advised plaintiff that they would consider the matter further and advise the plaintiff as to what they would do. On April 25,1925, they- sent a telegram to the effect that they would sell plaintiff the land for $35,000, one-fifth cash, and the balance in five equal annual payments, interest at six per cent payable semiannually or would accept $34,000 as of date of acceptance, February 26, 1925, interest computed from that date and terms the same as they had given to the club on a previous sale of land to it. In answer to this proposition plaintiff wired that he already had a contract for the purchase of the land for $34,000, one-sixth cash and the balance in four equal annual payments, and was waiting for the defendants to deliver abstract and close the transaction as per agreement.
The question presented is whether the minds of the parties met. On one side it is said that the terms fixed on the proposition to sell one-half of it to the club were carried forward and became a part of the final offer for the whole of it to Nichols himself. The other side is contending that no terms were agreed upon, that only easy terms were mentioned, that “easy terms” were not to be determined by Nichols nor by the defendants, but were to be mutually agreed upon. That was the reason, it was said, why they were asked to come to Kansas City in order that the terms might be settled. The court held that the minds of the parties did not meet and that in fact no contract was made.
Did the correspondence mentioned between plaintiff and defendants create an enforceable contract? Some argument is advanced by plaintiff in support of a contention that the real estate was sufficiently described to meet the requirements of the statute of frauds. It appears to be conceded that the sufficiency of the destiription was not challenged in the district court, and in this appeal we are confined to a review of the rullings made by the trial court. Assuming, as we must, that the description was sufficient, the only question presented for decision is, Was there such a meeting of the minds of the negotiating parties as is requisite to the formation of a binding contract? It may be said that definiteness and certainty in an offer and acceptance are essential to the formation of a contract. So long as something remains to be settled or done in order to establish contract relations, a contract is not closed. The negotiations as between the parties herein are embraced in correspondence, and we have only the question of law, Does it show the certainty and completeness essential to a valid contract, or were there material terms and conditions left to future agreements? If the latter is the case, the contract cannot be regarded as closed or complete. In a similar situation where the price was agreed upon for a sale of land, but the terms and conditions were not, it was held that a judgment for specific performance could not be given. It was said:
“Plaintiffs’ letter to the defendant, which they contend closed the bargain and made a binding contract, shows, on the contrary, that the minds of the parties had not met upon the terms and conditions under which the deferred payments were to be made. Defendant had never stated what his desires were in respect to when, where or how the money should be paid, or the rate of interest it should draw. Some very essential conditions proposed by the plaintiffs in their letter required his acceptance before the contract for purchase and sale was complete. Until he had notified them in some manner of his acceptance, either by correspondence or by sending a deed to the bank with instructions to deliver it to plaintiffs upon the terms stated in their letter, the plaintiffs could not have been compelled to purchase had they seen fit to decline to complete the contract and notified him of the fact before his acceptance of the terms stated in their letter. In order to be a contract, it had to bind both parties.” (McCarter v. Rogers, 104 Kan. 204, 205, 178 Pac. 621.)
The record discloses that the earlier negotiations between the parties extended from June, 1924, to February, 1925, in which many letters passed relating only to a proposed sale of the south half of defendants’ land to the golf club, for whom the plaintiff was acting. At that time the negotiations between defendants and the club were dropped, the plaintiff stating that he thought it was impossible to interest the club at the purchase price named by defendants of $1,250 an acre for the south half of the land. Plaintiff then proposed negotiations between himself and defendants and asked them to make him a price on the entire tract. This was an independent and different proposition involving different subject matter and different parties, and we must look to the subsequent correspondence to ascertain whether or not a complete contract was made enforceable in a court of equity.
As we have seen, the plaintiff proposed to purchase the land himself and asked the price on the entire tract, stating that he then could offer the golf club one-half of it and retain to himself the balance. Four days later, as already stated, the defendants wired that they would take $34,000 for the tract upon easy terms and saying, “If interested I will.come.” What were the easy terms referred to by the defendants? They were not defined. Who were to settle the terms? Not the plaintiff alone, nor could the defendants alone prescribe the terms. That was something to be mutually agreed upon in the future by the plaintiff and the defendants. The suggestion that if interested defendants would come to Kansas City, implied that the matter of terms might be settled when they came, and in plaintiff’s acceptance he said, “Hope you come immediately.” The contract was not complete. There was no concurrence of intention as to the terms. That was a matter of considerable importance in a transaction of this kind. It involved the cash to be paid, the times and amounts when subsequent payments should be made, how the deferred payments should be secured, and if by mortgage whether releases would be given to purchasers of the tract from the plaintiff, and still further, the rate of interest on the unpaid purchase money. Plaintiff claimed that “easy terms” meant á cash payment of one-sixth of the price mentioned and the balance in four equal annual payments, with six per cent interest, payable semiannually, but he does, not suggest what, if any, security should be given for the deferred payments. This interpretation of “easy terms” was evidently placed on the proposal, because in a letter written earlier relating to a sale of one-half of the tract to the golf club similar terms were stated by defendants. But as already stated, a sale to plaintiff was a new proposition, distinctly different from the one relating to the sale of one-half of the tract to the golf club, and nothing in the correspondence relating to the sale to plaintiff himself indicated that the terms previously made to the golf club would be carried forward and constitute a part of the proposition for the sale of the whole tract to plaintiff.
It is fundamental that specific performance will not be decreed where the contract is incomplete or uncertain in its terms. (Greenawalt v. Este, 40 Kan. 418, 19 Pac. 803; Bentz v. Eubanks, 41 Kan. 28, 20 Pac. 505; Young v. Schwint, 108 Kan. 425, 195 Pac. 614; Spiher v. Johnson, 110 Kan. 339, 203 Pac. 696; Wing v. Mollett, 115 Kan. 116, 222 Pac. 88; 25 R. C. L. 218.)
It follows that the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Harry Eisminger was found guilty of being a persistent violator of the intoxicating liquor law, as that offense is defined in R. S. 21-2146. He has appealed and contends that the record of his former conviction was improperly admitted in evidence.
The specific question presented arises in this way: In the first case he was charged with the violation of R. S. 21-2101 on May 18, 1924. He was tried September 26, 1924, on that charge, found guilty and sentenced. He appealed to the supreme court, where the appeal was dismissed for want of prosecution, and conviction affirmed November 28, 1925. In the case before us the defendant was charged with being a persistent violator on June 29, 1925. He was tried on this charge January 30, 1926, found guilty and sentenced. At the trial, to prove the former conviction, the state offered in evidence the judgment in the first case of September 26, 1924, and the mandate of the supreme court of November 28, 1925, affirming that judgment. Defendant's objection to the introduction of this evidence was overruled. He now makes the point that he was not guilty of being a persistent violator on June 29, 1925, when the charge in the first case was then pending on appeal, which appeal was not finally determined until November 25. The point is not well taken.
The appeal of the first case did not set aside the judgment of conviction therein; it only stayed the enforcement of the sentence imposed by that judgment. (State v. Alexander, 84 Kan. 393, 114 Pac. 241.) The conviction in the first case was complete when the court approved the verdict of guilty and pronounced judgment thereon. (Commonwealth v. McDermott, 224 Pa. St. 363.) Even in civil cases the rule in this state is that an appeal from a judgment of the district court does not prevent that judgment from being received in evidence in another case. (Willard v. Ostrander, 51 Kan. 481, 32 Pac. 1092; Munn v. Gordon, 87 Kan. 519, 125 Pac. 7.) Furthermore, at the time of the trial of this case, the appeal in the former case had been disposed of. If there had ever been a question as to whether that conviction should stand, that question was removed before this case was tried. Appellant cites and relies upon State v. Volmer, 6 Kan. 379. The statute has been materially modified since that case was decided. Then the statute (Gen. Stat. 1868, ch. 82, § 287) provided that an appeal suspends the judgment (where the sentence was to pay a fine only). Our statute (R. S. 62-1710) now provides only that the execution of the judgment or sentence may be stayed by taking an appeal and giving bond; the judgment or sentence itself is not set aside nor rendered nugatory by appeal. But even in State v. Volmer, supra, it was held that if the conviction in the former case had been affirmed, “then it would have the same effect as though no appeal had even been taken.” Here the former conviction had been affirmed before the trial in this case, and the effect of the appeal was as though it had not been taken.
The judgment of the court below is affirmed. | [
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Per Curiam:
The judgment of the court below in this case will be affirmed, upon the authority of the case of The St. Louis & San Francisco Railway Co. v. Dudgeon, 28 Kas. 283, ¶ 3 of syllabus, and the corresponding portion of the opinion. Also, see Berry v. St. Louis, Salem & Little Rock Rld. Co., 65 Mo. 172. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of replevin, brought by the defendant in error, Lewis Mead, against John Sims, sheriff of Morris county, one of the plaintiffs in error, to recover two hundred and thirty-four bushels of wheat, which Sims as sheriff had levied upon, under an execution in favor of the Emporia National Bank, against George B. Wilcox and Charles H. Wilcox. Mead claimed possession of the wheat under and by virtue of a chattel mortgage executed to him on March 24, 1881, by George B. Wilcox. The mortgage purported to secure a promissory note for the sum of $360, due thirty days after date, bearing interest at twelve per cent, per annum, executed by George B. Wilcox to the order of Lewis Mead, and was filed with the register of deeds of Morris county on March 25, 1881. After the commencement of the action, the Emporia National Bank was made a party defendant. A trial was had before the court with a jury, and a verdict and judgment rendered in favor of Mead.
I. It is contended that by reason of the failure of the chattel mortgage to designate in what manner the portion of the wheat which was mortgaged was to be separated and ascertained,, and because the mortgage did not designate whether it meant two-thirds of the acres of wheat, or two-thirds of the shocks of wheat, or otherwise designate the particular two-thirds upon which the lien was intended, it cannot be enforced against the creditors of the mortgagor. The provisions in the mortgage, among other things, are:
“Now, therefore, in consideration of said indebtedness, and to secure the payment of the same as aforesaid, the party of the first part does hereby sell, assign, transfer and set over to the party of the second part, the property described in the following schedule, to wit, the undivided two-thirds of forty acres of growing wheat, being all the wheat in and growing on what is known as the Old John Wise farm, on Gilmore creek, in Morris .county, Kansas: . . . provided, however, that if said debt and interest be paid as above specified, this sale and transfer shall -be void. The property sold is to remain.in «the possession of the party of the first part until default be made in the payment of the debt and interest aforesaid, or some part thereof.”
We think within the authorities, that the description in the mortgage is sufficient, and that it was not absolutely necessary therein to designate in what manner the division of the growing wheat was to be made. (Potts v. Newall, 22 Minn. 561 ; Jones on Chattel Mort., §§142, 143; Brown v. Holmes, 13 Kas. 492; Shaffer v. Pickrell, 22 Kas. 619; Howell v. Pugh, 27 Kas. 702.)
II. It is also contended that the consideration for the mortgage had been fully satisfied, and that no indebtedness was secured thereby at the date of the levy. On the part of plaintiffs in error, one J. W. Simcock testified that on the date of the mortgage, witness went with Wilcox to Mead’s store and proposed if Mead would, as surety for Wilcox, sign an appeal bond for a certain judgment against Wilcox before a justice of the peace in an action brought by one Shepherd, that Wilcox would indemnify Mead against his liability on the bond by a chattel mortgage on the wheat; and that by agreement Mead was to hold the note and mortgage described in the petition as security only against loss or damage for his signing the appeal bond. It was further shown that on the 15th day of December, 1881, and before the commencement of this action, the attorney for Shepherd filed a written order in the district court to dismiss the case at Shepherd’s costs; and also at the following term of the district court, Shepherd’s attorney voluntarily took an order of dismissal of the case. In rebuttal, Mead testified that after it had been understood that he was to take the note and mortgage as security for signing the'appeal bond, during the absence of the witness Simcock at the office of the justice of the peace, it was agreed between him and Wilcox that he should hold the mortgage also as security for.the balance due him on a store account against Wilcox, amounting to f>92,50; and that the consideration for the note and mortgage at the time they were executed was the securing of himself from liability on the appeal bond and his store account. Upon this evidence the court very fairly instructed the jury, and from the verdict it is apparent that they found that the note and mortgage embraced the store account, and that while Mead was discharged from all liability on the appeal bond by the proceedings had in the action of Shepherd against Wilcox in the district court, the store account was unpaid. As there was sufficient evidence to sustain the verdict of the jury, we cannot ssjy that the indebtedness mentioned in the mortgage never had a real existence, or that it had been fully satisfied. Counsel cites a large number of authorities concerning the- impropriety of substituting a different cóndition by parol evidence from that which is expressed in a mortgage, but these authorities do ntit apply. Upon the evidence, the note and mortgage were given to secure Mead from loss by his signing the appeal'bond and the store account then due and unpaid. The note and mortgage embraced both, and therefore in permitting Mead to testify to the consideration for which the note and mortgage were given, he was not thereby permitted to vary or contradict by parol evidence the mortgage. The question before the court was as to the consideration of the note and mortgage. One party contended that it embraced only security against loss from signing the appeal bond; the other party claimed it also ■included the store account. The j ury accepted the latter claim as the correct one, and as they were the exclusive judges of the facts from the testimony in the case, and of the credibility of the witnesses, their finding is conclusive. (Herman on Chattel Mortgages, § 60, p. 126.)
III. Mead testified that about a week or ten days after the mortgage had been given, Wilcox came into his store, and he remarked to him “that his account was running up to be pretty large, and he wanted to know if it would be the understanding between them that the note and mortgage should be held for such goods as he was getting at the time,, and might get along thereafter.” That Wilcox said “Yes,” and that such was the understanding. At the time of the execution of the note and mortgage, $92.50 only was due to Mead on the store account from Wilcox. The future advances upon the subsequent parol agreement amounted to $17.48. The evidence concerning these future advances, and the instruction authorizing the jury to find therefor, were all objected to. While there is some conflict in the authorities whether the intention to secure future advances must be expressed on the face of the chattel mortgage, or not, it seems to be well settled that a chattel mortgage cannot be extended to cover advances not contemplated at the time of its execution. (Jones on Chattel Mortgages, §§ 96, 98.)
IV. After the sheriff levied upon the wheat, he harvested, stacked and threshed it, at a cost of $202.45. He also hauled it to town and stored it. It was subsequently sold by him for $200.91 — not enough to pay the expenses; and it is urged that as the expenses consumed the value of the wheat, Mead was not entitled, to anything. The court instructed the jury, that in finding the value of the wheat, the market value of it at the time of the commencement of the action was to be taken, regardless of the expense of harvesting, threshing, and stacking. We perceive no error in this ruling. The sheriff had deprived Mead of the possession of his property without his consent, and he was entitled to recover his property or the value of his interest therein, without paying the charges or other expenses claimed of him for the keeping, harvesting, or threshing the same.
In a case of trover, when the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, willful negligence, or wrong, the value of the property taken and converted is the measure of just compensation. (Wells on Replevin, § 617.) But in a case of replevin, if the law permits the action, the plaintiff is entitled to recover the specific personal property'‘described in his petition, or in the case of a mortgagee, the debt and interest secured thereby. And where the defendant gives a redelivery bond, and the delivery cannot be had to the plaintiff, the plaintiff is entitled to recover the value thereof, as well as his damages for the detention; or in a case like this, his debt and interest. In this case, Mead, without making any demand, was entitled to the possession of the wheatjwhich had been levied upon by the sheriff. (Shoemaker v. Simpson, 16 Kas. 52.) Prior to the commencement of his action, it was not necessary for him to tender any charges or expenses to the said sheriff; and it not being necessary for him in the first instance to make such a tender, or pay therefor, he could not be compelled thereafter to pay the expenses incurred by the sheriff in harvesting and taking care of the wheat.
V. Upon the trial, one E. S. Bertram was permitted to testify?as to the contents of a lease executed by George B. Wilcox, to the owner of the premises upon which the wheat was grown. There was no sufficient foundation laid for the introduction of evidence of this character, and therefore the contents of the lease were improperly received. We do not' think, however, that this evidence was very material; and if the district court had not received improper evidence concerning?the future advances furnished upon a parol agreement subsequent to the execution of the mortgage, and had not given an erroneous instruction thereon, the judgment would not be disturbed. For these latter errors, however, the judgment of the district court must be reversed.
‘All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the facts as found by the trial court, the statement of counsel representing plaintiff in error that Stephenson, the vendor, supposed that at the time of his purchase at sheriff’s sale he was acquiring the estate in the premises of which P. G. Parker, deceased, died seized, and not simply a half-interest therein, is not fully sustained. The action to foreclose the mortgage of March 22,1876, was commenced against Eebecca F. Parker, as widow and heir of P. G. Parker, deceased, and against her as administratrix of said estate. The other heirs were not made parties to the action, nor is it alleged that their existence was unknown, and therefore Stephenson, as the purchaser under the judgment in the foreclosure suit which he instituted, obtained only the title of the defendant in that action. The children of P. G. Parker, deceased) might have been joined with the widow as defendants if he had desired, under the foreclosure and sale, to have divested them of their legal title to the property. (Britton v. Hunt, 9 Kas. 228.)
As after the sale, Rebecca F. Parker conveyed to Stephenson other property in full satisfaction of the balance due on the judgment rendered upon the note executed by her and her husband and secured by the mortgage, the mortgage has been fully paid and satisfied, and therefore the premises are no longer burdened with the lien of the mortgage or the judgment. Stephenson obtained all the title and estate at the time he purchased that he had any right to suppose he was buying when the property was struck off to him, and he is in no condition to complain, because he is bound to know the law. The heirs are not required to redeem, because there is no mortgage lien or judgment to be paid or satisfied. Plaintiff in error stands in the shoes of Stephenson, and is not entitled to any higher rights than his grantor. Neither he nor Stephenson can again foreclose the mortgage, because the debt secured thereby has been paid.' The children of P. G. Parker, deceased, have not been guilty of any laches or other acts whereby they should be estopped from the recovery of any property inherited by them from their father, and the ruling of the district court upon the merits of the case must be sustained.
Objection is made to the petition. We think such objection, however, unavailing. (Scarborough v. Smith, 18 Kas. 399, 408-9; Tabler v. Wiseman, 2 Ohio St. 208, 211.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
While the prayer of the petition filed in this case is to the effect that the judgment rendered in the district court of Leavenworth county, on the 6th day of May, 1874, in favor of F. C. Eames, against E. S. W. Drought, and now alleged to be owned by the plaintiff, may be adjudged a lien upon the lands of the defendant in Wyandotte county, not exempt from sale upon execution, the principal object of the action was to vacate the order of the district court of Leavenworth county, of the date of April 22d, 1881, confirming the sheriff's sale of real estate made July 13th, 1874. The objections to that confirmation recited, are that it was made without notice to the opposite party, and no one appeared to oppose the same; further, that on the 13th day of July, 1874, when Eames bid off the premises at the sheriff's sale, one David Schwartz was the owner of two several certificates of tax sales upon the land for taxes assessed against it, and that on the 17th day of June, 1875, the county clerk of Leavenworth county executed to the said Schwartz two sev- . eral tax deeds thereon, which said tax deeds were recorded ■September 24th, 1881.
In the first place, we do not think that the orders and judgments of the district court of Leavenworth county could be corrected in this manner by the district court of Wyandotte county; nor do we think the district court of Wyandotte county could, in proceedings of. this character, declare the orders and judgments of the district court in the action of Eames against Drought, irregular or Void.' The district court of Leavenworth county had jurisdiction of the subject-matter of the action, and of the parties litigant therein, and however irregular or erroneous its proceedings may be, no district court of any other county, for supposed irregularities or erroneous rulings or inequitable conclusions can declare its order and judgment to be void, or perpetually enjoin the same. The only way to correct the errors of the district court of Leavenworth county, if any there be, is to apply to that court or this court, by petition in error. (Meixell v. Kirkpatrick, 28 Kas. 315.)
The order of confirmation of April 22d, 1881, was not void for want of notice to Eames or his assignee. A sale of real estate may be confirmed at any time after the sheriff has made his return to the execution or order of sale, and on the motion of any person interested therein, or on the court’s own motion, and with or without the consent of the sheriff; and the confirmation of the sale relates back to the date thereof. (Code, §458; Ferguson v. Tutt, 8 Kas. 370; Johnson v. Lindsay, 27 Kas. 514; Baker v. Hall, ante, p. 617.)
According to the petition, the delay in asking for the order of confirmation was the result of the negligence of Eames, or his assignee, F. W. Perkins. For this delay Drought was not responsible. As Drought paid all the costs, and as the original judgment was for the sum of $292.22 only, the sum of $320 bid for the land, fully equaled the judgment. It is contended, however, that on account of the tax deeds of the date of June 17th, 1875, recorded September 24th, 1881, Eames was not bound by his bid, as the tax liens were sufficient grounds for releasing him therefrom. Further, as Drought had no title to the real estate described in the petition at the date of confirmation, plaintiff is entitled to have that order adjudged void. Not so. Earned was the.mort gagee, and might have paid the taxes upon the premises, or redeemed the land so sold for taxes, at any time before his judgment; and the taxes so paid might have been included in the judgment rendered on the mortgage. ( Gen. Stat. 1868, ch. 107, §135.) Further than this, if he had not redeemed before judgment, as the tax liens had not ripened into tax deeds on the day of sale, and for many months thereafter, he might have obtained a confirmation of the sale at the term of court following his purchase, and had the sheriff directed to satisfy all tax liens from the proceeds of the land. (Gen. Stat. 1868, ch. 107, §40.) The judgment and interest up to the day of sale were less than $300; the amount bid for the land was $320. The amount of taxes due at the date of sale is not set forth in the petition, and for aught that appears therein, the proceeds of the land may have been sufficient to. discharge the taxes and penalties, and also the judgment other than the costs.
The judgment of the district court sustaining the demurrer will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
on August 17,1.880, the parties in this action entered into the following contract:
“Articles of agreement, made this seventeenth day of August, one thousand eight hundred and eighty, between Jacob M. Mills, of Brown county, Kansas, and Jacob Ruehlin, of Lyon county, Ohio, of the second part, witnesseth: That said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned, on his part will convey and assure to the party of the second part, in fee simple, clear of all incumbrances whatever, by good and sufficient warranty deed, the following-described premises, viz.: Northwest one-fourth of section three, town two, range eighteen, Brown county, Kansas, for the sum of three thousand dollars. And the party of the second part hereby covenants and agrees to pay to said party of the first part the sum of two hundred dollars on or before the first day of October, eighteen hundred and eighty; eight hundred dollars to be paid on the first day of March, eighteen hundred and eighty-one; five hundred dollars on the first day of October, eighteen hundred and eighty-two; five hundred dollars on October first, eighteen hundred and eighty-three; five hundred dollars on October first, eighteen hundred and eighty-four; five hundred dollars on October first, eighteen hundred and eighty-five — all of said payments to bear seven per cent, interest annually, from March first, 1881.
“Now the foregoing instrument to remain in full force and effect until this instrument is fulfilled. In witness,
Jacob M. Mills.
Jacob Ruehlin.
His
Witness: John A. Dowell and James X Collins.”
In pursuance of that contract, defendant in error paid plaintiff in error, on October 1, 1880, $200. On March 1, 1881, he tendered $800 and offered to execute notes and mortgage for $2,000, which plaintiff in error refused; and thereupon defendant in error brought this action to enforce a specific performance of the contract. The district court upon a trial sustained the defendant in error’s claim, and decreed a specific performance. In respect to this decree plaintiff in error, defendant below, now alleges error. Of this written contract both parties complain: the plaintiff, that it does not state all the matters agreed upon; the defendant, that even so far as it goes it does not truly state the contract between the parties. Upon the trial the district court found against the defendant and in favor of the plaintiff, and that as far. as it went the writing truly expressed the agreement between the parties, but that other matters were agreed upon which were not stated therein. Now whether this contract so far as it went truly expressed the agreement between the parties, is a question of fact. Upon it the testimony is conflicting. Both plaintiff and defendant were witnesses in their own behalf. Each was suPPorted more or less by other testimony. Upon this question of fact the finding of the district court is conclusive. This court does not weigh merely con flicting testimony. We accept the decision of the triers of fact, whether court or jury, as final. We may say, upon axreview of the testimony, that while the respective parties are positive in their contradiction of each other, and while each is supported by some extrinsic evidence, there is nothing which would justify this court in disregarding the finding of the district court as to the very facts. It is a plain case of yes or no between the parties, and we are bound by the conclusions of the trial court. By those conclusions the facts are found to be as the plaintiff below, defendant in error, alleges them; and the facts being as so claimed, the judgment necessarily follows. By those findings the plaintiff paid the $200 on October 1, as contracted, tendered the $800 on March 1, as stipulated, also offered notes and mortgage for the two thousand dollars, the balance of the purchase-money, and demanded the deed. The plaintiff in error refused to receive the $800, refused to receive the notes and mortgage, and refused to make the deed contracted for. In this he plainly broke the contract entered into between the parties, and no valid reason appears why he should not perform it. Of course he claims that the contract was different from that stated by defendant in error and found by the court, but upon the tes- • timony and findings we are bound by the decision of the trial court. We may remark that generally more testimony is required to prove that a written contract is not true and does not express the agreement of the par-than to prove that it is notffull and does not cover all the matters agreed upon between the parties. It is one thing to contradict a written contract, and another and less thing to prove that its stipulations do not embrace all the matters agreed upon between the parties. ' The district court found the contract to be true so far as it went, but that other matters agreed upon were not expressed. (Ball v. Benjamin, 73 Ill. 39; Montelius v. Atherton, Sup. Ct. Col., 14 Rep. 553.) And notwithstanding the conflict in the testimony, we are bound by its conclusions. The judgment of the district court will therefore be affirmed, and it is so ordered.
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The opinion of the court was delivered by
Hokton, C. J.:
The plaintiff brought an action against the defendant upon a promissory note before it was due, and obtained an attachment against the property under the provisions of §§ 230 and 231 of the code. Afterward the defendant filed his motion and affidavit to discharge the attachment, for the sole reason that the grounds laid for the attachment in the plaintiff’s affidavit were untrue. Upon the hearing of the motion before the judge of the court at chambers, various affidavits were submitted, and the case taken under advisement by the judge. Thereafter he decided the motion in favor of defendant, discharged the attachment, and rendered a personal judgment for costs against plaintiff.
Defendant suggests that the plaintiff’s petition does not state a cause of action, and that as he did not amend or offer to amend it, there was no error in the discharge .of the attachment. We cannot consider this question, because the motion heard by the judge was not based upon the ground that the petition was defective, and that matter was not discussed or considered in the hearing thereon. If any. objection had been made to the petition, undoubtedly it would have been amended at once if any amendment were necessary. As tending to establish that the defendant was about to make a conveyance of his property with the fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts, Jennie Shoup testified —
“That on September 10,1882, she was engaged to be married at a future time to the defendant; that on that day he came to her and urged an immediate marriage, giving as his reason for the haste that his business affairs were becoming involved, and that he wanted to deed to her the land he had previously bought of the plaintiff, and make over to her his personal property so that nobody could get it away from them; that after showing his deeds to the land, he then said that he wanted to go to Emporia the next morning to consult his lawyer, and promised that if she would go along with him and be married, he would make a warranty deed of the land to her, and make over to her his personal property.”
It also appears from the affidavits that the note sued on was given by the defendant to plaintiff for a portion of the purchase-price of the land attached in this case, and that upon the giving of the note plaintiff desired the execution of a mortgage on the land by defendant as security, but defendant represented that he was unwilling to place any incumbrance on the land, but promised and agreed with plaintiff that if he would take the note without a mortgage on thé land, he would give the plaintiff good security for the payment of the note outside of the land, by good indorser or otherwise, to plaintiff’s satisfaction ; that plaintiff, relying upon these promises, delivered to him the deed to the land attached, and took the note; that immediately thereafter defendant executed to other parties a mortgage upon the land in question, including other lands, securing the amount of $1,250, and in a few months executed a second -mortgage also to, other parties embracing the same land, to secure $256.20. The defendant attempted to avoid the effect of the evidence of Jennie Shoup by stating that his promise to deed her his farm was said jokingly. He denied that he told her that he would convey to her his personal property. In view of other questionable transactions to which the defendant was a party, we do not think his evidence worthy of much' consideration.
The district judge ought not to have received, as against the objection of the plaintiff, the various affidavits of witnesses tending to prove that the defendant’s reputation for honesty and fair dealing was good. (Simpson v. Westenberger, 28 Kas. 756.) Taking the whole record together, we are satisfied that there was ample evidence presented to the district judge to sustain the plaintiff’s affidavit for attachment, and the ruling discharging the attachment was erroneous.
The order and judgment of the district court will therefore be reversed, and the cause remanded.
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The opinion of the court was delivered by
Horton, C. J.:
The rulings complained of are:
“1. In sustaining the plaintiff’s objection to. the admission in evidence of the original petition of the electors of Mission .township, praying the board of county commissioners to make an order that certain domestic animals be confined in said township during the night-time.
“2. In sustaining the plaintiff’s objection to the introduction in evidence of copies of the Kansas State Record, a newspaper published in said county, of dates April 19, 1871, April 26, 1871, and May 3, 1871, and the ■ advertisements therein contained of the order of the board of county com- ■ missioners, made April 10, 1871, in pursuance of said petition!.
“3. In overruling the motion of the defendant for a new trial of said cause.”
The order of the board of county commissioners of Shawnee county, made April 10, 1871, that all persons owning cattle, horses and mules in Mission township, in that county, should keep them confined in the night-time during the entire year, ,was founded upon the provisions of §1, ch. 105, Gen. Stat. 1868, (p. 921, Comp. Laws 1879.) Before the board of county commissioners of any county has authority to make the order for the confinement of domestic animals during, the night-time under that section, a majority of the qualified electors of the township to be affected thereby shall by petition ask the board of county commissioners of the county where such township is located, to make such an order. For the purpose of ascertaining whether the petition has been signed by a majority of the qualified voters of the township, and to establish the genuineness of the signatures to the petition, it is/prescribed by § 2 of said chapter 105 as follows:
“ Whenever the number of electors of the proper township, subscribing such petition or petitions, shall be at least three-fifths of the number of votes polled in such township at the last general election, such number shall be conclusive as to a majority of the qualified electors in the township; and an affidavit shall be appended to such petition, by some competent witness, setting forth that the several petitioners are qualified electors of the township, and themselves subscribed the same personally or by their authorized agents, naming such agents.”
The affidavit appended to the petition sought to be introduced by the plaintiff in error'(defendant below) reads:
“State oe Kansas, Shawnee County, ss.: L. L. Andis, being first duly sworn, says he presented the within petition to the legal voters of Mission township, Shawnee county, Kansas, and that each of them who signed the same are legal voters and electors, and subscribed the same personally for the purposes herein named.
[Signed] L. L. Andis.
“ Subscribed and sworn to before me, this 5th day of April, 1871. Witness my hand and official seal, this day above written. P. I. Bonebkake, County Clerk.
■ “By J. W. Jackson, Deputy.”
The affidavit is defective in this: it does not allege that the several petitioners were qualified electors of Mission township. The affidavit states that the affiant “presented the within petition to the legal voters of Mission township, . . and that each of them who signed the same are legal voters and electors, and subscribed the same personally for the purposes herein named.” All of this might be true, yet not affirmatively show that each one of the petitioners was a qualified elector of the township. ‘ The petition was therefore properly excluded as evidence.
Section 1 of said chapter 105 provides that the board “shall also cause a certified copy [of such order of the board] thereof to be published in some newspaper published 'in the county, for three weeks.” The plaintiff in error (defendant below) attempted to prove that the order of the board of county commissioners, made in pursuance of the petition duly certified, had been published for three weeks in the Kansas State Record, a weekly newspaper then published at Topeka. The certificate of publication reads:
“State of Kansas, Shawnee County, ss.: I, P. IBonebrake, county clerk in and for said county of Shawnee, do hereby certify that the foregoing is a correct copy of the herd law as the same appears of record in my office.
“Given under my hand and official.seal, 15th day of April, 1871. P. I. Bonebrake, County Cleric.”
The objection to this certificate made before the trial judge was, that it did not certify that it was a correct copy of any order made by the board of county commissioners, and that the order' was certified to be a different thing from what it really was; therefore it was contended that the copy was not certified at all. With this view we cannot concur. It is the policy of the law to uphold certificates where substance is found, and not to suffer them to be set aside, disregarded or defeated by merely technical or unsubstantial objections; and courts will, when necessary, resort to the contents of the instrument to which it is attached for the purpose of upholding a certificate. (Carpenter v. Dexter, 8 Wall. 513; Morse v. Hewit, 28 Mich. 481; Ferguson v. Howard, 7 Cranch, 408.) The insertion of the words “the herd law” in the certificate cannot invalidate the publication, or render the certificate void, because these words are surplusage, and may be wholly disregarded. Leaving these words out, it appears that the clerk certified “that the foregoing [thereby evidently meaning the order above recited] is a correct copy as the same appears of record in his office.” Even if the certificate be read with the words “the herd law,” it can scarcely be called fatally defective, because upon examination of the order re cited above the certificate, it appears that the persons owning domestic animals in Mission township were required to confine them in the night-time during the entire year; and in common parlance, it is not much out of place to call the statute upon which this order was founded, the “night herd law.” However, as the petition upon which the order of the board of county commissioners of Shawnee county acted was properly excluded as evidence, and as the board of county commissioners had no authority to take action in the premises in the absence of a petition, the trial court ’ committed no error in excluding the Kansas State Record, and in overruling the motion of the defendant for a new trial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
It appears from the record in this case, that on January 11, 1878, Nancy C. Johnson was injured by a fall, which she experienced while attempting to step from one cars °f the Atchison, Topeka & Santa Fg railroad company to the gronndj at Raymond, Kansas. Afterward, and .prior to April 11, 1878, Mrs. Johnson entered into a parol contract with J. H. Smith and C. T. Daniels, as follows: Smith and Daniels were to commence and prosecute an action in her name against the Atchison, Topeka & Santa Fé railroad company, to recover damages for the said injuries. They were to pay all the expenses of the prosecution, and in consideration for their services and expenditures were to receive either one-half of the amount of the judgment to be recovered, or a portion of such judgment amounting to $2,000 g and Mrs. Johnson, on her part, was to receive either the other half of such judgment, or the excess of the judgment over and above the amount of $2,000. As to which had the option in determining how the judgment should be finally divided when recovered, the record does not clearly show. Afterward, and on April .11, 1878, Smith and Daniels, in pursuance of their contract with Mrs. Johnson, commenced an action in the district court of- Rice county, in the name of Uriah D. Johnson and Nancy C. Johnson, against the Atchison, Topeka' & Santa Fé railroad company to recover for said injuries; but they afterward so amended their petition as to make Mrs. Johnson the sole plaintiff in the case. The action was afterward tried by the court and a jury, and on February 4, 1880, judgment was rendered in the case, in favor of Mrs. Johnson and against the railroad company, for the sum of $8,450. The defendant railroad company took proper exceptions to the various rulings of the cpurt during the trial, and also moved for a judg ment in its favor upon the verdict and findings of the jury, and also moved for a new trial; which motions were overruled by the court, to which rulings the defendant duly excepted. The defendant then made a case for the supreme court, which case was duly served, settled, signed and authen-. ticated, and was duly filed in the office of the clerk of the district court of Rice county. On March 22, 1880, Mrs. Johnson, in consideration of her previous parol contract with Smith and Daniels, and of the services rendered by them in the case, and of money expended by them in the prosecution of the case, duly executed the following assignment to Smith and Daniels, to wit":
“Rice County, Kansas, March 22, 1880.
“For and in consideration of the sum of five hundred dollars, to me in hand paid, and legal services for me performed, by J. H. Smith and C. T. Daniels, I do hereby sell and assign to the said J. H. Smith and C. T. Daniels an interest of two thousand (2,000) dollars in a judgment of $3,450, in my favor and against the Atchison, Topeka & Santa Fé railroad company, in the district boprt of Rice county; and I do authorize the said Smith and Daniels to reserve the said sum .out of the said judgment, when they may collect the same; or I do authorize the clerk of the district court to pay them that sum, and interest at seven per cent, on the same from January 6, 1880. Nancy C. Johnson.”
On July 19, 1880, Mrs. Johnson and the railroad company settled and compromised all their disputes, and Mrs. Johnson executed the following release, to wit:
“Judgment $3,450. — $575. — For and in consideration of the sum of five hundred and seventy-five dollars, to me in hand paid by the defendants in the above action, I do hereby acknowledge a full release, discharge and satisfaction of the above judgment and costs, and do direct, authorize and request the clerk of said court to enter upon the judgment docket of said court a full release, discharge and satisfaction of the same.
Dated July 19, 1880. (Signed) Nancy C. Johnson.
Witness: Warren Wynant, J. G. Waters.”
Thé judgment, as it appears in the records of the district court of Rice county, was duly entered satisfied;' and this release was attached to the judgment.
It is admitted by the parties that the railroad company had notice of the original parol contract between Mrs. Johnson and Smith and Daniels; but whether the railroad company had any notice or knowledge of the assignment made by Mrs. Johnson to Smith and Daniels, is a disputed question of fact. We shall say more with reference to this question hereafter.
Afterward, and on July 22,1880, Mrs. Johnson, at the. instance of Smith and Daniels, executed the following revocation of said release, to wit:
“I, Nancy C. Johnson, do hereby declare that the foregoing instrument, purporting to be a release and' satisfaction of the foregoing judgment, was only intended as a release of fourteen hundred and fifty dollars, and interest on the same at seven per cent, since the rendition of said judgment; that the remainder of said judgment, two thousand dollars, was assigned to J. H. Smith and C. T. Daniels for services rendered and money advanced by them on the 22d day of March, 1880; and that I had no authority to settle or compromise their said interest in the said judgment, and did not intend to include their interest in the said release.
(Signed) Nancy C. Johnson.”'
This revocation was also attached to the judgment, as it appears in the records of the district court of Rice county.
The great preponderance of the evidence, if not the entire evidence, shows that Mrs. Johnson, when she entered into the contract of settlement with the railroad company, and when she signed said release, intended to include the entire judgment, and to release the entire judgment without any reference whatever to any supposed interests which Smith and Daniels might have had in the judgment. Indeed, we think it may be said that there was no competent or legitimate evidence to the contrary. But whether she could make such a settlement, and execute a valid release of the entire judgment, including Smith’s and Daniels’s supposed interests therein, is one of the principal questions involved in the case, and is really the only question in this connection. Nothing further was done in the case by either party, or by any person, until May 27, 1881.
On May 10,1881, § 556 of the civil code.was so amended, by an act of the legislature, which then took effect, that no proceeding to reverse, vacate or modify any judgment or final order of the district court could thereafter be commenced in the supreme court, unless the same was begun within one year after the rendition of the judgment or the making of the final order. This statute, by its terms, had the effect to bar and abrogate the then existing right of the defendant railroad company to take the case to the supreme court.
On May 27, 1881, Smith and Daniels made a motion, in the district court of Rice county, in the name of Mrs. Johnson, to vacate and set aside her said release and satisfaction of said judgment to the extent of $2,000, and that execution be awarded on such judgment for that amount. At the June term of the district court, 1881, this motion came on for hearing, and the defendant objected, to the hearing of the motion, and to the introduction of any,evidence in support thereof, upon the ground that the matters and things set forth therein were not properly determinable by the court upon motion, but should be determined only by a jury upon proper suit brought and upon issues properly joined upon petition and answer, which objection was overruled by the court, and the defendant duly excepted. The motion was then heard by the court, without a jury, upon written and oral evidence ; and upon such hearing the court sustained the motion, and ordered that the satisfaction of the judgment previously made and entered should be vacated and set aside to the amount of $2,000, and that execution for that amount, and for costs, be awarded against the railroad company; to which order of the court the defendant duly excepted, and then moved for a new trial and a rehearing, which motion for a new trial and rehearing was overruled, to which ruling the defendant again excepted. The defendant then made a case for the supreme court, which case was duly served, settled, signed and authenticated, and the defendant now, as plaintiff in error, brings the case to this court, and asks that the said order of the district court be vacated and reversed.
There are many questions involved in this case, some of which are difficult to be determined, though many of them we think are easy of solution.
That Mrs. Johnson’s judgment was valid and binding as qgainst the railroad company up to the time when she and the railroad company made their settlement, we think there can be no question; for the judgment was rendered by a court of competent jurisdiction, which at the time had jurisdiction of all the parties and of the subject-matter of the action; and the judgment remained valid and unsatisfied and unreversed up to the time when such settlement was made. No champertous contract on the part of Mrs. Johnson and her, attorneys could have the effect to destroy Mrs. Johnson’s right to prosecute the action to judgment, and to enforce such judgment against the railroad company. (Allison v. C. & N. W. Rld. Co. 42 Iowa, 275; Courtright v. Burns, 14 Cent. Law Jour. 89.) Also, except for the interest which Smith and Daniels are supposed to have had in Mrs. Johnson’s claim and judgment against the railroad company, she and the railroad company had the incontrovertible right at all times to.settle and compromise all their disputes, and finally to have the judgment rendered between them released, satisfied and discharged, and wholly annulled, and to do so in the very manner in which, and for the very consideration for which, all these things were attempted to be done by them. This we think necessarily follows from the decisions heretofore made by this court in the cases of Walrath v. Walrath, 27 Kas. 395, 399, and Clay v. Hoysradt, 8 Kas. 74. See also Read v. Hibbard, 6 Wis. 175. The question then arises: Could Mrs. Johnson and the railroad company so settle their affairs'and so release, satisfy and discharge said judgment, that the settlement and discharge would be valid and binding upon all parties, including Smith and Daniels, motwithstanding the supposed interest which Smith and Daniels claimed to have in the judgment? This question involves many others: Was the original contract between Mrs. Johnson and Smith and Daniels champertous and void ? And if so, did it render the subsequent contract between them, assigning an interest of $2,000 in the judgment to Smith and Daniels, void? Or was this subsequent contract itself champertous and void? Can the railroad company raise these questions of champerty as against Smith and Daniels ? and can it do so in the manner in which it attempted to do so in the present case? Can a judgment be divided, and a portion thereof be assigned to a third person, and the other portion be retained by the judgment creditor? Can this be done, either with or without the consent of the judgment debtor ? Had the railroad company, at the time it settled with Mrs. Johnson and at the time the release of the judgment was made and entered, any notice of the assignment of the $2,000 interest in the judgment to Smith and Daniels? Is a notice, merely in parol, sufficient in such a case, or must the notice be in writing? And did the railroad company ever consent to, or ratify, any such assignment ?
The question whether the railroad company had any notice of the assignment "by Mrs. Johnson to Smith and Daniels, was at the time of the hearing of the motion, and still is a disputed question of fact. The question, however, was submitted to the court below principally upon oral testimony; and this testimony was very conflicting and so evenly balanced as to make it very difficult to determine upon which -side the preponderance existed; and the court below found in favor of Smith and Daniels, and against the railroad company; and therefore we must now hold, for the purposes of fhe case, that the railroad company had notice of the assign - ment. This supposed notice was given some time after the assignment was made, and at most, was given only in parol; and therefore the further question arises: Is a notice in parol sufficient in such a case?
It would,, perhaps, be proper here to state that Smith and Daniels do not claim to have, or to be entitled to any attor neys’ lien in the case; and therefore the question as to what kind of notice should be given in order to enforce an attorney’s lien, does not enter into this ease. Smith and Daniels rely simply and solely upon the assignment made by Mrs. Johnson to them of the $2,000 interest in the judgment, and upon the knowledge which it is claimed the railroad company had of such assignment, and of the supposed assent which it is claimed the railroad company gave to such assignment. There is no sufficient evidence, however, upon which to found any just supposition that the railroad company ever assented to such assignment in any such manner as to make it binding upon the company, if such assent were at all necessary to make it binding upon the company. For the purposes of the case, we must suppose that the railroad company had knowledge of the assignment after it was made; and Smith and Daniels testified that one of the defendant’s attorneys said to them at one or more times, that he would give them $2,500 to settle th§ judgment with Mrs. Johnson; and that they could thereby make $2,000 clear; that they told him that they had an interest in the judgment; that he said that he understood that, that it was all right, and that he did not care who got the $2,500; that he would just as soon give the money to Smith and Daniels as to Mrs. Johnson; and asked if they would take $1,600 for their interest. But there was no evidence introduced tending to show that the railroad company, or any of its attorneys or agents, ever assented to the judgment itself or to any portion thereof, or ever agreed to pay anything thereon, except by way of settlement and compromise. At the time when this conversation occurred, the railroad company was preparing to take the case to the supreme court, and did not abandon the intention of doing so until after the settlement was made with Mrs. Johnson. There is still another question involved in this case; back and behind all the foregoing questions, there still exists the question: Did the cqurt below have jurisdiction to hear and determine all the questions involved in the controversy between Smith and Daniels on the one side, and the railroad company on the other, against the consent of the railroad company, upon nothing but a bare, simple motion? Upon the side of the plaintiff in error, see McDonald v. Falvey, 18 Wis. 571; and on the side of the defendant in error, see Wilson v. Stilwell, 14 Ohio St. 464; Laughlin v. Fairbanks, 8 Mo. 367.
It must be remembered, however, that Smith and Daniels were not parties to this judgment, and that the entire judgment was not assigned to them; hence authorities holding that a party to the judgment, or an assignee of the entire judgment, may have an erroneous satisfaction of the judgment set aside and vacated on motion, have but little application to this case. But passing over all other questions for the present and to the main and principal question — the one that involves the merits of the case —was the original contract, entered into between Mrs. Johnson and Smith and Daniels, champertous and void ? . We think this question must necessarily be answered in the affirmative. It h^s every element of champerty in it. It was prosecuted for a portion of the expected judgment, and for no other consideration; and Smith and Daniels agreed to pay all the costs and expenses necessary to be paid in such prosecution. This makes the contract unquestionably champertous. (Boardman v. Thompson, 25 Iowa, 487; Adye v. Hanna, 47 Iowa, 264; Martin v. Clarke, 8 R. I. 389; same case, 5 Am. Rep. 586; Low v. Hutchinson, 37 Me. 196; Weakly v. Hall, 13 Ohio, 167; Scobey v. Ross, 13 Ind. 117; Coquillard v. Beargs, 21 Ind. 479; Lafferty v. Jelly, 22 Ind. 471; Greenman v. Cohee, 61 Ind. 201; Duke v. Harper, 66 Mo. 51; Moody v. Harper, 38 Miss. 601; Copley v. Lambeth, 1 La. An. 316; 7 Wait’s Actions and Defenses, eh. 31, art. 3, pp. 73 to 76.)
Authorities may be found, holding that a contract between an attorney and his client for a purely contingent fee, or a contract of purchase and sale between an attorney and his client of an interest in tangible property adversely claimed, or adversely held by some third person, which property is then, or is likely to be, the subject of litigation, is not a champertous contract; but such authorities have no application to this case. For the purposes of this case we shall assume that such authorities are correct, and that such contracts are not champertous. The contract in the present case was that the attorneys should commence and prosecute the present action, at their own cost and expense, and for no other consideration than merely a portion of the judgment to be recovered; and the assignment in the present case was simply a reducing to writing the terms of the original champertous contract. With reference to this contract and the assignment, Mr. Daniels testified as follows:
“Question: State the contract you and Smith made with Mrs. Johnson, in regard to your interest in this judgment.? Answer: The contract was that we should take the case and pay all the expenses of the suit, and give her either $1,500 or one-half of the judgment.
“ Q,. You were to attend to the litigation and pay all the expenses of the suit? A. Yes, sir.
“ Q,. All other attorneys in the case you were to pay ? A. Yes, sir.
“Q,. If there were any other attorneys employed in all that time, all expenses were to be paid by you and Smith ? A. Yes, sir.
“Q,. This instrument (the assignment) was simply carrying this out? A. Yes, sir; it was made the 22d day of March.
“ Q,. Simply making it in writing ? A. Yes, sir. The contract was made long before.
. “ Q. But not reduced to writing? A. No, sir. We went and asked her how she understood the contract.
“ Q. Was that $500 (mentioned as a part consideration for the assignment) ever paid? A. We did not pay that amount at that time.
“Q,. That was simply inserted? A. We had paid a good deal.
“ Q. That was simply to cover what the expense of litigation had been to you? A. I don’t know how much we had paid at the time.
“ Q,. You don’t mean that you paid her that $500, in money? A. No, sir.”
The assignment was for no other or additional consideration than the original champertous contract, and the services rendered and the money expended under and in pursuance of such original champertous contract; and the relations between Mrs. Johnson and Smith and Daniels were therefore no better and no worse after the assignment was made than they were before. The assignment was therefore like the original champertous contract, simply champertous and void; and Mrs. Johnson had at all times an absolute right to treat it as champertous and void. She had the,right to collect the entire judgment, unless the railroad company took the case to the supreme court to have the judgment reyersed, or she had the right to compromise and settle all .her disputes with the railroad company, and to release and discharge the entire judgment, as she did. She in fact had an absolute and unqualified right to do as she pleased with the judgment, and this notwithstanding the champertous claim of Smith and Daniels -to a portion of the judgment. The mere fact that both she and the railroad company had knowledge of the assignment could not affect her right to dispose of the judgment as she pleased, and to whom she pleased; and Smith and Daniels had no legal right to interpose any objection, or to raise any question, or to make any complaint with reference to any disposition which she might make of the judgment; and this being so, it necessarily follows that after the railroad company settled and compromised all its disputés with Mrs. Johnson, and after obtaining a full and complete release and discharge of the judgment, it also had the right, the same as Mrs. Johnson had, to treat the assignment to Smith and Daniels as a nullity. Suppose that Mrs. Johnson had enforced the collection of every cent of her judgment — and the champertous contract between herself and her attorneys would not have prevented her from doing so — then could her attorneys collect $2,000 more from the defendant? After she had collected the whole of her judgment, would not the defendant be released? And if so, why could she not compromise the matter and take a- portion of the judgment? and certainly .so while the judgment had not yet become an absolute finality? We have already stated that, as against the rights of Mrs. Johnson, the railroad company had no right to set up as a defense the champertous contract between herself and her attorneys, for she, at all times and on all occasions, had the right to treat the champertous contract as null and void, and to recover on her' own account the whole of her claim; but, as against Mrs. Johnson, the railroad company had and now has the right to interpose the compromise and settlement and the release and discharge of the judgment, as a full and complete defense to all claims which she might at any time set up against the railroad company. There is no pretense upon the evidence that any fraud was practiced on Mrs. Johnson in procuring the compromise, or settlement, or discharge, or release of the judgment. She had full knowlege of all the facts, and with such knowledge voluntarily made such compromise and settlement and release and discharge; and this, at a'time when the judgment had not yet, from lapse of time or from any other cause, become absolutely final, but was still subject to be taken to the supreme court for further adjudication. Hence, although the railroad company cannot, as against Mrs. Johnson, interpose the defense of champerty, yet it can, as against her, interpose the defense that all matters of difference between them have been legally compromised and settled, and the judgment absolutely and wholly discharged. But, as against Smith and Daniels, we think the railroad company can interpose the defense of champerty. They are attempting, to enforce the champertous contract, and not merely to ignore it, as Mrs. Johnson has done, and as she' would do, in a contest between her and the railroad company, provided the railroad company had attempted to set up such a defense as Against her. Probably they could not enforce their champertous contract anywhere or against any person or corporation;. but they certainly cannot enforce it against the defendant, under the present circumstances. Mrs. Johnson we think had the unquestionable right to treat the contract between herself and her attorneys as champertous and void ; and the railroad company, by compromising and settling all their disputes with her and obtaining a release and discharge of the judgment from her, has succeeded to all her rights. If she had the right to set up the defense of champerty as against Smith and Daniels, then the railroad company, which has succeeded to her rights, undoubtedly has the same right. But probably Smith and Daniels could not enforce their champertous contract against any person or in any proceeding. Smith and Daniels, in their brief, have suggested that champerty must be pleaded. This is probably generally true, though several courts have held otherwise: Greenman v. Cohee, 61 Ind; 201; Webb v. Armstrong, 5 Humph. (Tenn.) 379; Morrison v. Deaderick, 10 Humph. 342; Barker v. Barker, 14 Wis. 131, 143. In the present case, however, there was no fair opportunity for setting up the defense in any formal pleading. Smith and Daniels are attempting to enforce their claim by a mere motion; and it is very rare that an answer in the nature of a pleading is allowed to be filed to a mere motion; but every defense that may be allowed in the particular case, is usually •allowed as against the motion, without the adverse party’s filing any .pleading. Probably Smith and Daniels should have prosecuted their claim by a regular action; and .then formal pleadings would necessarily have been required from every party who wished to set up any cause of action or any defense. But they did not choose to prosecute their claim by the commencement of a formal action, but chose rather to prosecute the same by a mere motion, and in the name of Mrs. Johnson; and hence they had no right to require the defendant to file a formal answer to their motion. We think the defendant had the right to interpose the defense of champerty in the manner in which it did in the present case.
The plaintiff in error, defendant below, raises the further question that a judgment cannot be so divided that a portion thereof may be assigned to a third person, and the other portion retained by the judgment creditor; and cites, as authority therefor: Love v. Fairfield, 13 Mo. 300; Mandeville v. Welch, 18 U. S. (5 Wheat.) 286; and Freeman on Judg-' ments, §424. We suppose that a portion of a judgment cannot be assigned at law, but that it may -be assigned in equity; or, in other words, we suppose that a portion of a judgment cannot be assigned so as to be enforced in a mere legal proceeding, but that it can be assigned so as to be enforced in equity wherever it is equitable that the same shall be enforced.. Whether Smith’s and Daniels’s motion in the name of Mrs. Johnson is an equitable proceeding, it is not necessary for us now to decide.
There are some other questions involved in this case, not yet decided; but .we do not think that it is necessary to decide t^iem now.
The' order of the court below sustaining the said motion will be reversed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a school district to recover from a former treasurer school district funds which he failed to turn over to his successor. Judgment was rendered against defendant on the pleadings, and he appeals.
The facts pleaded were substantially as follows: In April, 1923, defendant was elected treasurer of school district No. 64 in Anderson county for a term of three years. In February, 1926, he removed to Indiana and thereafter ceased to perform any of the duties of such office. A successor was later elected, and qualified April 21 following. During defendant’s term of office, various sums of money belonging to the school district came into his hands, some of which were disbursed, leaving a sum aggregating $7,913.73 when he went away. The petition alleged that the defendant’s successor had been unable to make demand upon him for the money remaining in defendant’s hands because defendant had removed from the state. Also, that defendant had failed, neglected and refused to pay over or deliver to his successor, or any person for plaintiff, the money remaining in his hands. The defendant admitted his election as treasurer of the school district; that he continued to perform the duties of the office until March 13, 1926, when he removed to Indiana, and alleged that before leaving he had his account as treasurer of the district audited and that it was found to be correct. He admitted the election of his successor; that various sums of money came into his hands during his term of office, and that $7,913.73 remained at the time he ceased to act as treasurer. As a defense he alleged that during the time he acted as treasurer of the district, all moneys in his possession were deposited in the First National Bank and the Colony State Bank, both of Colony; that in the latter part of February, 1926, he decided to remove from Kansas, and at such time informed other members of the district board of such decision'; that they audited his books and took them into their possession; that he talked to them concerning his resignation and was informed by them that it would not be necessary for him to resign, because they would elect a new treasurer in a few days; that he executed checks covering March sálaries for the teachers, stated he would return no more, and went away; that A. C. Wallar has since his election been the acting treasurer of the district and has had control of all moneys collected. A demurrer to defendant’s answer was overruled. Later plaintiff filed a motion for judgment on the pleadings, which was sustained, and judgment was rendered against the defendant for $4,997.30, one of the banks as garnishee having paid into court $1,547.85, which was credited on the amount due.
It is contended by the defendant that under the orders and directions of the school district, duly made at a convened meeting thereof, he deposited the moneys of the school district in the banks designated by the board; that when a treasurer of a school district removes from the district and locates in another state as a resident thereof a vacancy is thereby created in such office; that having left the state, he as former treasurer has no longer any authority or power to perform any act as treasurer on behalf of the school district; that he had his books duly audited and turned over to the other members of the district board; that they had control of the funds in question and that, therefore, defendant is in no wise liable.
It may be observed that the defendant did not allege that he made any arrangements whereby anyone but himself could draw checks on the accounts in the banks, and in fact admitted that he signed checks to pay March salaries, which lends force to the contention of plaintiff that no one’s checks but defendant’s would be paid out of the accounts in the banks.
The statute provides:
“The treasurer ... at the close of his term of office shall settle with the district board, and shall hand over to his successor said book and all receipts, vouchers, orders and papers coming into his hands as treasurer of the district, together with all the moneys remaining in his hands as such treasurer.” (R. S. 72-1020.)
The treasurer of a school district is the legal custodian of its funds and, as such, liable to the district therefor. He cannot relieve himself from liability by depositing the funds in a bank or other depository, or by turning them over to any other member of the board'. Neither can the direction, instruction, order, acquiescence or consent of the other members of the board as to his manner of caring for such funds, in the absence of statute, relieve him from liability. (See School District v. Carson, 10 Kan. 238; Rose v. Douglass Township, 52 Kan. 451, 34 Pac. 1046; Phillips v. Bank, 98 Kan. 383, 158 Pac. 23; 36 L. R. A., n. s., 285, 22 R. C. L. 468; Crane Township v. Seroy, 103 Ohio St. 258, 18 A. L. R. 979, and annotation in 18 A. L. R. 982; 29 Cyc. 1437.)
Defendant was responsible for the funds placed in his hands. He was under bond to safely keep and account for them. He could not relieve himself from liability by placing them in the hands or under the control of someone who was under no statutory duty and under no bond to safely keep them. Practically the defendant was an insurer of the funds in his hands. (22 R. C. L. 468.)
He contends that the school district was within the provisions of R. S. 12-1640, which provides that the treasurer of the school board of any district in which there is a city of the third class shall deposit all public moneys coming into his hands in his official capacity in some responsible bank or banks within said city, the same to be designated by the school board. He did not allege that the district was one in which there was a city of the third class, but justifies failure to make such allegation on the ground that the courts take judicial notice of the boundaries of school districts and must, therefore, have taken notice that this school district included a city of the third class. It may well be doubted whether courts will take judicial notice of the boundaries of school districts which are subject to frequent change. However, the point need not be decided here for the reason that the defendant failed to show compliance with this statute. It requires that deposits of school district funds shall be in the name of the treasurer; that banks in which the de posits are made shall pay interest on daily balances, and that where more than one bank is designated, the funds shall be equally divided, and that a bond shall be taken from such banks, to be approved by the school board in double the largest approximate amount that may be on deposit at any one time, conditioned that such deposit shall be promptly paid on the check or draft of such treasurer, etc.
A complaint that the judgment was erroneous because rendered for a less amount than that prayed for in the petition is without substantial merit. The defendant was not prejudiced by a credit allowed for a part of the funds turned over to the district court by one of the banks.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover the amount it had paid for premiums on a policy of insurance issued by the Federal Surety Company to indemnify the board of county commissioners of Labette county for any loss or damage it might sustain on account of injuries to workmen employed by the county in constructing a hard-surfaced road. The defendant answered and asked that it recover judgment for $1,280.08, the amount of premiums earned under the policy and which had not been paid by the plaintiff. Judgment was rendered in favor of the plaintiff for $1,371.25, the amount of the premiums which had been paid, and judgment was rendered against the defendant denying its claim for unpaid premiums. The defendant appeals.
The action was tried by the court without a jury and was prosecuted by the plaintiff on the theory that the county was not liable for accidents or for injuries to employees engaged in road-building. It is argued that for that reason the county was not authorized to purchase insurance to provide for payment of damages to injured employees, and that therefore the county can recover the amount of the premium paid. The policy was canceled by the board of county commissioners on'September 16,1925.
All the questions argued are disposed of by Robertson v. Labette County Comm’rs, ante, p. 705, just decided. The county had authority to purchase the insurance and is liable for' the premiums which it contracted to pay.
The judgment is reversed, and the cause is remanded with directions to ascertain the amount of unpaid premiums at the time of the cancellation of the policy and to enter judgment in favor of the defendant for that amount. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs prosecuted this action to set aside a deed executed by Elizabeth Moss to the defendant conveying certain real property in Douglas county to the latter. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
The petition alleged that at the time of executing the deed, Elizabeth Moss was of unsound mind and incapable of transacting business affairs and that the defendant exerted undue influence over Elizabeth Moss in procuring the execution of the deed. The action was tried by the court without a jury. Special findings of fact were not made, but a general finding was made in favor of the defendant.
The plaintiffs argue that under the evidence judgment should have been rendered for them, and that there was not sufficient evidence to sustain the judgment of the court. It is enough to say that there was evidence on which the court could have rendered judgment in favor of the plaintiffs, but that there was ample evidence to support the judgment that was rendered. While there was evidence which tended to prove that the defendant exerted an undue influence over Elizabeth Moss in inducing her to execute the deed and that the mind of Elizabeth Moss was then in.a weakened condition, there was abundant evidence, if not the greater weight of it, which tended to show that she was of strong mind, that she was not easily influenced, that she executed the deed voluntarily on her own initiative, and that the defendant did not in any way induce Elizabeth Moss to execute the deed. Under such circumstances, the finding and judgment of the trial court is conclusive.
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The opinion of the court was delivered by
Marshall, J.:
Joseph Schmitz, Jr., George Schmitz and Frank Schmitz each filed a claim in the probate court of Nemaha county for wages against the estate of their father, Joseph Schmitz, Sr., for services performed by them on farms owned by Joseph Schmitz, Sr., under a contract with the latter by which each of the three was to receive better wages than he could receive anywhere else, which wages were to be paid at the death of the father. George Schmitz filed his claim for $6,500 for thirteen years’ work; Joseph Schmitz, Jr., claimed $5,500 for eleven years’ work; and Frank Schmitz $1,750 for three and one-half years’ work. Each claim was allowed by the probate court for the amount named, and was classified by that court as a claim of the fifth class. Each claimant appealed to the district court where each case was tried on an agreed statement of facts, and each claim was again allowed for the amount named, and was again classified as a claim of the fifth class. From the order of classification, each claimant has appealed to this court, and each contends that his claim should have been classified as a claim of the second class.
The material parts of the agreed statement of facts, so far as the claim of George Schmitz is concerned, were as follows:
“At the time George Schmitz became twenty years of age, his father asked this claimant to work on the farms, and promised him that if he would work on the farms that he, this claimant, would receive at his father’s death better wages than he could receive anywhere else, and that the better wages would be paid to him at his father’s death. Acting and relying on this promise this claimant began work on his father’s farms, doing everything that a farm hand and an- owner of farms would do. That this claimant received nothing during the life of his father for the work he did, nor has he at any time received any pay therefor.
“That this claimant worked on his father’s farms for a period of thirteen years from 1907 to 1920, and that the reasonable value of his services is five hundred dollars ($500) a year, or sixty-five hundred dollars ($6,500). That Joseph Schmitz, the deceased, was able, during his lifetime and during the time that this claimant worked on his farms, to pay off the original mortgage indebtedness of seventeen thousand dollars ($17,000), which sum was owed by him when he took possession of said farms.”
With some variation, not here material, the agreed statement of facts concerning the claim of Joseph Schmitz, Jr., and of Frank Schmitz was the same as that of George Schmitz, except that Joseph Schmitz, Jr., worked for a period of eleven years and Frank Schmitz for a period of three and one-half years. The period of service for each terminated in 1920. It does not appear that the services were rendered during the last sickness of the father, who died on February 7, 1925. Each claim was allowed by the probate court in October, 1925.
What was the proper classification of these claims? The answer to that question involves the construction of R. S. 22-701, the material parts of which section read:
“All demands against the estate of any deceased person shall be divided into the following classes: . . . Second, expenses of the last sickness, wages of servants and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration. . . . Fifth, all demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate.
That statute in the same language is found in section 3 of chapter 188 of the Laws of 1911, which amended section 3515 of the General Statutes of 1909. Before the amendment the parts of the statute necessary-for consideration read:
“All demands against the estate of any deceased person shall be divided into the following classes: . . . Second, expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration . . . Fifth, all demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate . . .” (G. S. 1909, § 3515.)
The changes made by section 3 of chapter 188 of the Laws of 1911 in section 3515 of the General Statutes of 1909 were to take out the comma after the word “servants” in the second subdivision of the section and to strike out all of the seventh subdivision.
In Cawood v. Wolfley, 56 Kan. 281, 43 Pac. 236, the court said:
“All wages due a clerk for' services rendered before as well as during the last illness of a deceased employer fall within the second class of claims against his estate, and are included in the term ‘wages of servants,’ as used in section 80 of the ‘act respecting executors and administrators and the settlement of the estates of deceased persons.’ ”
When that case was decided the part of the statute now under consideration read: “Second, expenses of last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration.” At that time, and always for that matter, the law of this state has favored the collection of wages owing from employers to employees. Under that policy of the law the statute, when Cawood v. Wolfley was decided, could easily be construed to place all wages of employees in claims of the second class when allowed against the estates of deceased persons. After the amendment in 1911, the statute read: “Second, expenses of last sickness, wages of servants and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration.” Only part of the sections of the statute concerning the settlement of estates of deceased persons was amended in 1911. So far as the present case is concerned, the only amendment of section 3515 of the General Statutes of 1909 consisted in taking out the comma after the word servants, so as to make the statute read, “wages of servants and demands for medicines and medical attendance during the last sickness of the deceased.”
In The State v. Deuel, 63 Kan. 811, 66 Pac. 1037, this court said:
“Where a particular elapse or sentence of a statute is so ungrammatical, or so punctuated, as not to make sense, and the intention of the legislature is clearly ascertainable from the context and from a statute in pan materia, this court will put that construction on it intended by the legislature, and, for such purpose, may change the punctuation and capitalization to express such intention.” (Syl. HI.)
In Atchison, T. & S. F. Rly. Co. v. State Highway Commission, 123 Kan. 576, 579, pertinent language was used:
“The problem before us is, of course, to find the purpose and intent of the legislature in enacting the statute in question. In other words, What is the manifest purpose of the statute? (Young v. Regents of State University, 87 Kan. 239, 124 Pac. 150; Gleason v. Sedgwick County, 92 Kan. 632, 635, 141 Pac. 584; Railway Co. v. Cowley County, 103 Kan. 681, 684, 176 Pac. 99.) Punctuation is important only as it aids in the interpretation of the statute. If it is ambiguous or obviously misleading it may be disregarded. (State v. Deuel, 63 Kan. 811, 66 Pac. 1037.) Or, perhaps more accurately, the purpose of the statute is to be determined from its obvious purpose, its' history, etc., without specific reference to the punctuation used.”
In 36 Cyc. 1117 it is said:
“While punctuation, including quotation marks, brackets, etc., is subordinate to the text and can never control the plain meaning of a statute, it is nevertheless proper, in case of doubt, that punctuation, etc., should operate as an aid in the construction and interpretation of the statute.”
To the same effect is 25 R. C. L. 965.
In Cawood v. Wolfley, supra, the court said:
“Though the language used might perhaps be held to restrict the time to the period of the last sickness, we think it as capable of the other construction, and that the legislature intended to classify all wages of servants ahead of debts due the state, judgments, and demands of the fifth class.” (p. 282.)
Cawood v. Wolfley was decided in 1896, long before the statute was amended. The legislature must have meant something by the change that was made. By removing the comma the legislature made clear the statute that had been made ambiguous by the insertion of the comma. The statute now clearly provides that wages of servants during the last sickness shall be classified as claims of the second class, the same as medicines and medical attendance during the last sickness of the deceased. That excludes from claims of the second class wages earned by employees before the last sickness of the deceased.
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The opinion of the court was delivered by
Hutchison, J.:
The motion for a rehearing is overruled and denied. But with reference to that part of the opinion and instruction to declare a trust and appoint a trustee we wish to suggest it is not the intention or purpose of the court to impose any greater hardship or burden on the owner of the property than is absolutely necessary to protect the legal rights of others, in this case the appellant. It did not require the introduction of evidence in this case to convince the court of the very unfriendly attitude of and bitter feeling between these two litigants, father and son. The pleadings alone were sufficient to justify the court in concluding that the usual natural affection was, temporarily at least, reduced to a minimum. Besides, our own experience teaches us that too often more restrictions and supervision are necessary among relatives than among entire strangers in the adjustment of differences and settlement of disputes. The proposed plan of good faith and fair dealing, as outlined by the appellee in his brief, is ideal. A reciprocal acceptance and confidence would obviate the necessity of further restrictions. This prompts us to suggest that the best way to make this ruling and decision mutually beneficial is by a friendly agreement as to details and methods of preserving the property and conducting the business to protect the rights of all parties and save expense in so doing. We fully realize that, in addition to the extra expense of a trustee, the business of the father will be seriously handicapped and retarded, to the detriment of both parties to this' litigation, by the supervision of a trustee, but without closer contact we could do nothing else and be sure of full protection of the rights of the son. However, we recommend to the trial court in connection with the original opinion and order that such modification of the rigor thereof be made as in his judgment can safely be done through the channels of friendly agreement, temporary conveyances, bonds, or other security, so as to afford a reasonable opportunity for the successful handling of the business and the preservation and development of the property to the mutual advantage of these litigants. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a son and daughter to set aside their father’s will. The basis of the action was their father’s alleged want of testamentary capacity and that the will was executed through the undue influence of théir stepmother.
On issues joined and evidence for the parties heard at length, the trial court found that the testator was of sound mind and memory at the date of the execution of the will, and that he did so execute it, and that it was not made through undue influence of the stepmother. Judgment was entered accordingly.
Plaintiffs appeal, and begin their argument with this proposition:
“Where the testimony tends to establish uncontradicted, but inconsistent facts, the reviewing court is not bound by the findings of the trial court.”
This contention is untenable. This court is not a fact-finding tribunal. Uncontradicted evidence is not necessarily truthful; the trial court was not compelled to believe it. (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 2, 112 Pac. 115; Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, syl. ¶ 4, 234 Pac. 77.) Furthermore, the proposition as advanced by plaintiffs concedes that the so-called uncontradicted testimony clashed with “inconsistent facts,” which doubtless constrained the trial court to discredit the testimony advanced in plaintiff’s behalf.
Plaintiffs assign error in the trial court’s striking out the answer of a witness that the testator was absent-minded. The fact itself was of little' or no probative value on testamentary capacity. Philosophers and other abstruse reasoners are prone to be absent-minded. That arises from their intellectual power to disregard external trivialities and concentrate their attention on things worth thinking about.
Another error is suggested because the trial court permitted witnesses to testify that the testator was capable of making a testamentary disposition of his property. At most this evidence was objectionable only as to the form of the question and answer. (Hessen v. Sapp, 98 Kan. 737, 160 Pac. 220; Cole v. Drum, 109 Kan. 148, 152,197 Pac. 1105; Loveless v. Ott, 121 Kan. 728, 735, 250 Pac. 324.) Moreover, where there is no jury to be misled by incompetent testimony, the introduction of incompetent testimony is not necessarily fatal to the judgment. Trial courts are presumed to refrain from giving judgment on such an ill-founded basis.
In State Bank v. Weiser, 117 Kan. 389, 393, 232 Pac. 613, it was said, “The presumption is that the trained mind of the trial judge was not led astray nor his judgment perverted by the fact that some incompetent testimony had been aired in his hearing. (Crum et al. v. Oil Co., 117 Kan. 54, 230 Pac. 299.) ”
Other objections to the judgment present nothing to justify discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In August, 1926, the plaintiff sued to enjoin the defendant from enforcing an order made by him against the plaintiff. On April 7, 1927, judgment was rendered in favor of the defendant, and the plaintiff appeals.
The plaintiff purchased an instrument of writing, the material parts of which are as follows:
“G. M. A. C.
No. KD-79. $5,000 '
UNITED STATES OF AMEBICA.
GENERAL MOTORS ACCEPTANCE CORPORATION GOLD NOTE.
“General Motors Acceptance Corporation, a corporation of the state of New York, for value received, hereby promises to pay the bearer on December 9, 1926, the sum of five thousand dollars ($5,000) in gold coin of the United States of America of the present standard of weight and fineness, at the office of Fidelity National Bank and Trust Company of Kansas City.
“The General Motors Acceptance Corporation hereby covenants that it will not at any time subsequent to April 1, 1926, pledge or otherwise subject to a lien any of its property or assets, without thereby expressly securing the due and punctual payment of this note, equally and ratably with any and all obligations and indebtedness secured by such pledge or other lien; provided, however, that there shall be excepted and excluded from the restriction of the foregoing provisions any financing by the General Motors Acceptance Corporation of the export or marketing of goods in foreign countries (other than the Dominion of Canada), in connection with which the General Motors Acceptance Corporation reserves the right in accordance with customary and established banking practice, to deposit or otherwise to subject to a lien receivables for collection or as the basis for the issuance of bankers’ acceptances or in aid of other similar borrowing arrangements. This note shall not become obligatory for any purpose until the certificate of authentication herein shall have been signed by, or in behalf of, the comptroller of the said corporation.”
Shortly thereafter the defendant wrote the plaintiff bank as follows:
“State of Kansas, Banking Department,
Topeka, Kan., August 14, 1926.
“Mr. W. H. Burks, President, Security State Bank, Wellington, Kan.
“Dear Mr. Burks — Your letter of August 10, 1926, has been received, and I note that you have discounted a note of General Motors Acceptance Corporation.
“The attorney-general has held that these are not legal investments for state banks, and you are hereby directed to remove the same from the assets of your bank within thirty days. Very truly yours,
“Rot L. Bone, Bank Commissioner.”
The question presented is, Was the obligation one that the plaintiff could legally purchase under the laws of this state? The pertinent statute is section 1 of chapter 85 of the Laws'of 1925, which reads:
“Section 1. That section 9-101 of the Revised Statutes of 1923 be amended to read as follows: Sec. 9-101. Any five or more persons may organize them-, selves into a banking corporation, and shall be permitted to cany on the busi ness of receiving money on deposit and to allow interest thereon, giving to the person depositing credit therefor; and of buying and selling exchange, gold, silver, foreign coin, bullion, uncurrent money, bonds of the United States, bonds of the state of Kansas, bonds of land banks organized under the federal farm-loan act and authorized to make loans secured by first mortgages on Kansas farm lands, bonds and warrants of cities, counties and school districts in the state of Kansas, and state, county, city, township and school bonds issued in other states of the United States than Kansas, of loaning money on real estate, chattel and personal security at a rate of interest not to exceed the legal rate allowed by law; of discounting negotiable notes and of notes not negotiable, and to own a suitable building, furniture and fixtures for the transaction of its business, of the value not to exceed one-half of the capital and surplus of such banks: Provided, That nothing in this section shall prohibit such bank from holding and disposing such real estate as it may acquire through the collection of debts due it.”
That law was amended by section 9 of chapter 88 of the Laws of 1927 so as to provide that banks may buy and sell “secured bonds of private corporations which have been engaged in business not less than ten years, and which bonds are secured by property worth more than twice the amount of such bonds, conditioned that such bonds shall have the approval of the state banking board for such purchase.” That amendment took effect June 1,1927.
After judgment was rendered in this action, a closely similar question was presented to this court in First State Bank v. Bone, 122 Kan. 493, 252 Pac. 250, where this court said:
"State banks have no authority under the statute (Laws 1925, ch. 85) to buy and sell, nor to invest their assets in, bonds of a kind not named in the statute.”
The opinion in that case was filed January 8,1927. The amendment of 1927 followed that decision. In that case it was held that a written obligation, similar to the one here presented, if not the same in legal effect, was declared to be a bond within-the meaning of the statute quoted. The question was there discussed at length, and what was there said might be here repeated and would be entirely pertinent. It is not repeated because it is unnecessary to do so.
The statute does not define either bonds or promissory notes. It makes a distinction, but it is almost a distinction without a difference.- However, the distinction was made, and the courts must recognize it. It was recognized in First State Bank v. Bone, supra. The legislature, in using the term “note,” probably had in mind a simple written promise by one person to pay to another, or to his order, or to bearer, a certain sum of money at a definite time, and intended that banks should not purchase any written obligation for the payment of money other than those mentioned in the statute. This conclusion is supported by the amendment made to this law-in 1927 whereby banks are authorized under certain conditions to buy and sell secured bonds of private corporations.
The instrument in question has much to indicate that it is a promissory note, but it has more to indicate that it is a bond within the meaning of the statute under consideration. The instrument is so closely parallel to the one under consideration in First State Bank v. Bone, supra, that it must be said that the present case is controlled by the former decision of this court.
The instrument here in controversy is not a note; it is a bond within the meaning of the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case involves the construction of a will and codicil thereto. The will gave a life estate in Jand to a daughter and remainder to her children. It also gave her a bequest of $2,500, to be paid her in cash. The codicil specifically revoked the devise and bequest to the daughter, and did not mention the', estate in remainder, but devised and bequeathed the same land, both by reference and by description, and the same amount of money to his wife. The question is, Does the codicil give the wife an estate in fee, or does it simply substitute her for the daughter with a life estate only, leaving a remainder for the children of the daughter? The construction will necessarily depend upon the language of this portion of the will and the'codicil. The seventh and eighth para graphs of the will are as follows, omitting the description of the land:
“Seventh. I give, devise and bequeath to my daughter, Cornelia Hoadley, for her use, enjoyment and profit, during her natural life, the following real estate in Riley county, Kansas, to wit: [here follows description]; the said Cornelia Hoadley to have the use and benefit of all of said real estate and all the rents and profits thereof for her support and maintenance and for the support, nurture, and education of her minor children, and at her death all of said real estate to descend to and become the property of the children of the said Cornelia Hoadley, share and share alike, and I hereby declare it to be my intention-and desire by this devise to provide a support for my said daughter during her lifetime, sufficient to enable her to live in comfort and to give her children a thorough education, and at her death to leave a sure and certain remainder in all of said real estate •for the children of said Cornelia Hoadley.
“Eighth. I give, devise and bequeath to .my said daughter Cornelia Hoadley, the sum of $2,500 in money, the same to be paid by the executor of this will to the said Cornelia Hoadley in equal annual payments of $500 each.”
The codicil in full, omitting description of the land, which is the same as in the paragraph of the will above quoted, is as follows:
“Know all men by these presents:
“That since the execution of the foregoing will, more mature reflection has convinced me that in view of the fact that I have already made advancements of considerable sums of money to my daughter, Cornelia Hoadley, and in view of certain other matters and things which have occurred since the foregoing will was executed, a change in my will is, in my judgment, rendered necessary, and to that end I hereby declare the following to be my deliberate act, and-announce this, the following, as the first codicil to my will:
“First, I hereby revoke and annul any and all bequests heretofore made to my daughter, Cornelia Hoadley, of every kind and nature, and particularly the bequests described and contained in paragraphs numbered seventh (7th) and eighth (8th) in the foregoing will.
“Second, I hereby give, devise and bequeath to my wife, Adelia E. Higinbotham, all and every the property of every kind heretofore described in paragraphs seventh and eighth, in the foregoing will, to be hers absolutely and forever, to wit: [here follows description]; and also the sum of two thousand five hundred dollars ($2,500) in money mentioned in paragraph eight (8) of the foregoing will. I direct my executor to pay this last sum to my wife, Adelia E. Higinbotham, instead of to my daughter, Cornelia Hoadley, hereby intending to bequeath to my said wife all the property heretofore bequeathed to the said Cornelia Hoadley.”
The will was executed by George W. Higinbotham on May 9, 1899, and the codicil on September 2, 1899, at both of which times his daughter and her only child, a daughter, were living with him and his wife at their home. The testator died on October 22., 1899, and the will and codicil were probated on October 27, 1899. On February 15,1907, the wife, assuming to be the owner in fee simple under the codicil, conveyed by warranty deed a portion of the land described in the codicil, and by subsequent mesne conveyances the plaintiffs in this action claim title.
This action is brought to quiet title against those who claim to be entitled to an estate in remainder under the provisions of the seventh and eighth paragraphs of the will. The defendants are the child and husband of the deceased granddaughter of the testator, she being the only child of the daughter of the testator. The daughter of the testator is still living, but the wife of the testator, who took under the codicil, died in 1915. The fact that the daughter was sued for damages in a large sum very shortly after the making of the will is assigned as the reason for the revocation of the devise and bequest to her and the making of the devise and bequest to the wife in the codicil in addition to what the wife had already been given by the will. The amended petition is unusually long for one in a quieting-title action. It sets out the will and codicil and the deed from the wife of the testator, and shows probate of the will, payment of debts, settlement of the estate, and all the conveyances down to the plaintiffs. It also alleges adverse possession, laches, estoppel, and other grounds for their claim of title against the defendant. The answer denies everything except the allegations concerning the will and codicil, the probate of the same, the conveyance by the wife, the subsequent mesne conveyances, and the reliance of such purchasers upon the record. It then at great length alleges the relation of the parties, the effect of the damage suit, the attitude of the wife of the testator, as shown by her will and codicil thereto, and concludes with a cross petition against the plaintiffs in ejectment. To this the plaintiffs filed a general denial for reply. Motions to make the amended petition more definite and certain and to strike out certain portions thereof and a demurrer thereto were all overruled before the filing of the answer and cross petition. The matter was determined in the trial court by sustaining the motion of the plaintiffs for judgment on the pleadings, from which judgment the defendants appeal, complaining of the adverse rulings of the trial court on the motions and demurrer, but particularly of rendering judgment for plaintiffs on the pleadings, frankly stating in the opening paragraph of the brief that “the principal question is the proper interpretation of the will and codicil.” Appellants main tain that the codicil lacks words that are necessary to make a devise in fee, and point to some other places in the will where the term “in fee” is used; also, that the words “absolutely and forever” do not supply this omission or constitute a complete estate. They also urge that the two references in the codicil to the daughter and the expressed intention of the testator are conclusive that only a life estate was given by the codicil to the wife, and the remainder provided for in the will to the children of the daughter still stands, and that such remainder is accelerated by the death of the substituted devisee, the wife.
The argument of appellants to the effect that the specific and definite character of the revocation 'as expressed in the codicil, without any reference to the remainder, is not without merit, because by all the authorities revocations of provisions of a will should only be made by definite statements in the codicil or strong implications by a disposition of the property which are necessarily inconsistent with such provisions. It would be difficult in this case to conclude that the specific language of revocation in the codicil went further than to annul the devise and bequest to the daughter. But what does the codicil give the wife? It gives her “all and every the property of every kind heretofore described in paragraphs seventh and eighth, in the foregoing will, to be hers absolutely and forever,” then describes the land. It will be observed that the testator used more complete and inclusive language in this devising sentence than in the revoking sentence of the first paragraph. What was the property described in paragraphs seven and eight? It was more than the life estate. Paragraph seven created the remainder and designated the beneficiaries thereof. Whatever there is described in paragraph seven is devised under this codicil to the wife of the testator. Cases are cited showing that the word “absolute” means quality of title and not quantity, and others defining the word “forever” as relating to time or duration, and that neither of them take or supply the place of the expression “in fee simple.” In the case of Johanson v. Johanson, 118 Kan. 103, 233 Pac. 1039, the following language was used in the third paragraph of the will: “I give, devise and bequeath to my wife, Anna L. Johanson, the following property to be hers absolutely and forever.” The court in the syllabus said: “The provisions of a will considered, and held, the testator’s wife was given an estate in fee in a tract of land, and not a life estate only.”
The commonplace and everyday meaning of the word “devise" used in this codicil is in favor of a full and complete estate, without any suggestion or even suspicion of a remainder over.
“There is no occasion for employing rules for judicial construction of a will in search of the testator’s intention where such intention is expressed clearly and unequivocally in the instrument.” (Morse v. Henlon, 97 Kan. 399, syl. ¶ 1, 155 Pac. 800.)
The thought of the impending damage suit described in the answer was evidently urging him to make sure that no property would by any possible contingency or construction be left to the daughter. That was the whole occasion or necessity for .the codicil. This expression of intention on his part conveys no thought of division of estate or limitation of interest. He knew, as most parents do and as is shown by the will and codicil of the wife set out in the answer, that the children of the daughter would be abundantly safe, and would not suffer with the property in the hands of his wife. It doesn’t seem reasonable that a man of considerable business ability and wealth could have planned to retain the remainder mentioned in the will without again mentioning it in the codicil, especially when there was the open and glaring question confronting him of when it would commence — whether on the death of his daughter or his wife. The law favors testamentary transfers of the entire estate, instead of part only, when there is doubt.
“Every devise of real property in any will shall be construed to convey all the estate of the testator therein which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.” (R. S. 22-258.)
Taking all the language of the codicil together and all the surrounding circumstances mentioned in the pleadings, it appears to us that the most reasonable and natural meaning and intention of the codicil is to convey to the wife an entire estate in fee simple, and it does not look to us as if the testator intended thereby to convey a less estate.
“In interpreting the language of a will, the law prefers a construction which will prevent a partial intestacy to one which will permit it, if such construction may reasonably be given.” (In re Brown, 119 Kan. 402, syl. ¶ 2, 239 Pac. 747.)
There are two further reasons that might be considered to confirm the conclusion above reached, but they are too technical on which to rely in the first instance. They are, first, the separation of the second paragraph into two sentences, which would indicate that the expression of intention in the closing sentence related only to the gift of $2,500; second, the literal meaning and appropriate use of the word “bequeath” refers only to personal property and not to real property, so that the expressed intention in that connection might well be said to have reference only to the legacy and not to the land.
“ ‘Bequeath’ is properly used only in making a testamentary transfer of - personal property.” (1 Words and Phrases, 431.)
Appellants complain of the ruling of the court on the preliminary motions and the demurrer. No doubt something might well have been stricken from the amended petition, and possibly some parts of it might have been made more definite and certain, but if it contains sufficient to constitute a cause of action,- then, at least for the purposes of this case, which has to do entirely with the pleadings, it is enough; and when judgment is rendered in favor of the plaintiff on the pleadings and approved by this court, it necessarily follows that the ruling on the demurrer was not erroneous.
Complaint is made that the amended petition contained many allegations which were confuted by the defendants, and that defendants should have been permitted to disprove them and establish by explanation many of the allegations of the answer. When judgment is rendered on the pleadings, those allegations of the amended petition which are denied or put in issue are not considered. Only the express or implied admissions and the allegations of the answer are the basis of such ruling.
The refusal of the court to listen to extrinsic evidence to explain the will was not error, because such evidence could only have been admitted upon the trial to establish the allegations of the answer, and they were considered the same as proved when the court rendered judgment on the pleadings. We find no error in this or other matters suggested in the brief of appellants.
The judgment is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a trustee in bankruptcy to set aside a deed of real estate made by the grantor shortly before he was adjudged to be bankrupt. An intervener claimed that, on account of a will, an equitable conversion of the land into personalty had taken place, and he had purchased the grantor’s interest in the personalty many years before the deed was made. A demurrer to the intervener’s pleading was overruled, and the trustee appeals.
Previous to the year 1914 the land belonged to William McMillan. On November 7, 1914, he died, leaving a will giving the land to his wife for her life and providing that at her death the land should be sold and the proceeds of the sale divided equally among persons who were described as sons, daughters and a stepdaughter of the testator. Willie H. McMillan is one of the sons. An executor was appointed, who subsequently resigned, and an administrator with will annexed was appointed, who is still in office. In December, 1916, for a consideration of $1,500, Willie H. McMillan assigned to the intervener all his interest in the personalty of the testator’s estate, and notice of the assignment was given to the executor. In May, 1924, and in contemplation of bankruptcy, Willie H. McMillan made a deed of the land to his children.
The theory of the trustee is that on the death of the testator the widow took a life estate in the land; the testator’s heirs took the remainder after the life estate, because the remainder had to go somewhere; the son Willie was an heir, and his interest, when the fraudulent deed is set aside, is an asset of the estate in bankruptcy. The difficulty with this theory is, it imports intestate succession into what was purely testate succession. The stepdaughter was not an heir of the testator. She took under the will. The children of the testator took by the same title, and to allow heirs to inherit a real-estate remainder after the wife’s life estate would contradict the will.
The terms of the will must be carried out, and in order to do so, the property devised is regarded as real property consisUng of a life estate in the land, and personal property derived by equitable conversion of the remaining interest in the land, considered as taking place at the testator’s death. The real property passed to the widow. As indicated in the case of Bank v. Haid, 97 Kan. 297, 155 Pac. 57, express words giving title to the executor are not essential to equitable conversion, and the personalty passed to the executor to be distributed according to the terms of the will. In this manner the whole estate in the land is accounted for.
Willie H. McMillan having assigned his share of the personalty to the intervener, his subsequent deed to his children conveyed nothing. The trustee in bankruptcy would get nothing if the deed were set aside, he has no interest in setting the deed aside, and on the face of the intervener’s pleading he is entitled to recover as against the trustee.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in which plaintiff seeks to have a sum of money adjudged to be a trust fund, which passed into the hands of a receiver of a failed bank, and that it be allowed as a claim preferred over the claims of common creditors. A trial to the court resulted in a judgment for plaintiff. The defendant has appealed.
In the state of the record there is not much for this court to say other than to point out the questions that are not before it. In a case of this character there are two essential things which plaintiff must establish to entitle him to recover; First, that the money or fund in question is a trust fund. Second, that it actually passed into the hands of the receiver. (Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68; State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000.) In this case it was conceded by defendant at the trial in the court below that the money sought to be recovered by plaintiff was received by the bank under such circumstances as to constitute it a trust fund. In this court appellant suggests that perhaps that concession should not have been made; that perhaps defendant confused the relation of principal and agent with that of trustee and cestui que trust, but he does not ask this court to reexamine that question. Indeed, he is not in position to do so, since the question was not raised in the court below. So we must take it for granted here that the fund sought to be recovered was a trust fund.
Passing to the next question: Did the money constituting this trust fund pass into the hands of the receiver? The amount of the fund was $13,854.84. The Farmers and Merchants State Bank of Tonganoxie, which later failed, and of which defendant is receiver, had this money, together with other money which belonged to it, or which it was handling, in an account with its Kansas City correspondent, the Commerce Trust Company. The Tonganoxie bank drew drafts on the Commerce Trust Company which it honored and charged to this account. The balance of this account in favor of the Tonganoxie bank at the time the receiver was appointed was $10,090.24, which amount was paid to the receiver by the trust company, and thereby passed into his hands. No question was raised in the trial court as to the relations between the Tonganoxie bank and the Commerce Trust Company being that of debtor and creditor. The account of the Commerce Trust Company was treated as though the money represented by it was in the Tonganoxie bank. Appellant makes no complaint here of that treatment of the matter, so we must regard it in the same way. The trial court found that the amount owing to the plaintiff, and conceded to be a trust fund, was $14,824.68 at the time of trial, and that $10,090.24 of that fund passed into the hands of the receiver, and decreed plaintiff to have a preferred claim against the receiver for the sum last named.
Appellant contends that there is no evidence to support the conclusion of the court that the balance due the Tonganoxie bank in its account with the Commerce Trust Company was plaintiff’s money, or part of the trust fund of plaintiff. It is argued that the account of the Tonganoxie bank in the Commerce Trust Company was-changed from day to day, being increased by deposits and decreased by drafts drawn against it by the Tonganoxie bank; that the moneys in that account were treated by the Commerce Trust Company in the same way, that is, that plaintiff’s trust fund was never segregated from the rest of the money in that account, hence that there is no way of determining what money was used to pay the drafts drawn on this account by the Tonganoxie bank; that it may very well be that all of plaintiff’s trust money was used in paying such drafts, and hence that none of it was included in the balance which was turned over to the receiver. This contention lacks merit. It is not contended that any of the money in the account of the Commerce Trust Company, other than that of plaintiff’s, was a trust fund. The natural and reasonable conclusion from the evidence is that all of the money in this account, other than the trust fund of plaintiff, was the property of the Tonganoxie bank; that the Tonganoxie bank drew on this account to pay various of its obligations, and in doing so it would naturally be presumed to be using its own money to pay its own obligations. There certainly could be no presumption that it would intend to use plaintiff’s trust fund to pay its private obligations when it had money in the account to pay them. The result is that the Tonganoxie bank, in paying its obligations with drafts on the Commerce Trust Company, which were charged to its account, used all of its own money that it had in such account, and in addition thereto used some $4,000 of plaintiff’s trust fund in that account. On this point the judgment of the court below is sustained by the evidence.
There is no error in the record of which appellant can complain, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note. The defense was that defendant signed the note for the accommodation of plaintiff. There was a trial to the jury which answered special questions and returned a verdict for defendant. Plaintiff has appealed, and contends that under the facts disclosed by the evidence, the defendant did not, as a matter of law, execute this note for the accommodation of plaintiff. This point was pressed by plaintiff by a demurrer to evidence and by appropriate motions at various stages of the trial.
The facts are substantially these: In 1920 Fred Reeves, a farmer residing in Marion county, Iowa, then in good financial circumstances, borrowed $5,000 of the Swan Savings Bank, of Swan, Iowa, to use in making a payment on the purchase price of another farm he was then buying. For this he gave plaintiff his note, dated March 1, 1920, due in one year. Sometime within the year he purchased stock in the plaintiff bank, was elected a member of the board of directors, and was made vice president and placed on the loan committee, Before this note became due plaintiff placed this note, and other notes owned by it, with the Commercial Savings Bank, of Des Moines, as collateral security for money it borrowed from that bank. When the note came due Fred Reeves could not pay it, and desired to renew it. There was then a general depression of values, especially of land, and Fred Reeves’ financial ability was not as good as it was a year earlier. He was told by the president and cashier of the bank that the bank could not carry his note unless he would get additional signers on it, and they suggested his cousin, Riley R. Reeves, his mother, S. C. Snyder, and J. S. Viers, as persons whose signatures, together with his own, would be satisfactory. Fred Reeves at first objected and argued that the loan had been to him on his personal note and he thought it should be so renewed. But he was told that plaintiff bank was not in condition to carry the loan itself, that if it carried the loan it would have to rediscount it, or put it up as collateral, and that it could not do so without it was secured, and urged that he get additional signers. Fred Reeves then acquiesced in the requirement and procured the signatures of the persons whose names had been suggested with him on a new note dated March 1, 1921, due in one year, for the same amount as the old note, and payable to the plaintiff. This he took to the plaintiff bank, which sent it to the Commercial Savings Bank at Des Moines, as collateral, in lieu of the former Fred Reeves note, which was returned to plaintiff bank and by it delivered to Fred Reeves. When Fred Reeves went to his mother, S. C. Snyder, and asked her to sign the note with him, she at first refused; said she had other children, and that she should not obligate herself to this amount for him. He explained to her, saying: “There is no show for you to lose a cent. It ain’t for me, it’s for the bank.” She then signed. No one else talked with her about signing the note, before she signed it. When this note came due Fred Reeves could not pay it, and wanted more time and to give a new note for another year: General financial conditions and land values were then more depressed than they were the year before. He was then told that the plaintiff bank could not handle the new note at all, that he would have to make the new note to the Commercial Savings Bank, secured in the way that bank required, or get the money elsewhere. Fred Reeves then executed a note for $5,000, dated March 1, 1922, due in one year, and payable to the Commercial Savings Bank of Des Moines, and procured the signatures of Riley R. Reeves, S. C. Snyder and J. S. Viers as makers thereon. This note was sent to the Des Moines bank with the request for that bank to carry the loan, the proceeds to take up the prior note of the same makers to the Swan Savings Bank. Before this note was accepted by the Commercial Savings Bank, it sent a representative to Swan who investigated the-financial condition of the signers thereon and told Fred Reeves the bank would like to have it further secured by a second mortgage on one -of 'his- farms. Reeves consented to this and gave the mortgage. The Des Moines bank then accepted the note, and the former note executed by Reeves and others to the Swan Savings Bank was returned to him. A few months later the holder of the first mortgage on the farm above mentioned made a settlement with Fred Reeves by which he conveyed the land to the mortgagee to prevent foreclosure, the first mortgagee paying to the Commercial Saving Bank $1,000 to be applied upon Reeves’ note, and it released its second mortgage, leaving a balance on the note to the Commercial Savings Bank of $4,000. Later the Commercial Savings Bank of Des Moines sold.this note and indorsed it, without recourse, to the Swan Savings Bank. Fred Reeves went through bankruptcy. The balance of the note was not paid when it was due, and the Swan Savings Bank filed this action in the district court of Cowley county and procured service on S. C. Snyder by attaching land owned by her in that county.
Under the facts above set forth plaintiff contends that the court below erred in submitting to the jury the question whether S. C. Snyder signed for the accommodation of Fred Reeves, or for the accommodation of the plaintiff bank, and contends that she must be held, as a matter of law, to have signed for the accommodation of Fred Reeves. This contention must be sustained. When S. C. Snyder signed first with her son in March, 1921, she necessarily did so for his accommodation and not for the accommodation of the bank, as the term “accommodation” is used in our negotiable instruments law. (R. S. 52-306.) The bank would have been accommodated by Fred Reeves paying his note. Since he could not do that, the fact that a new note was taken at all by the bank was for Reeves’ accommodation. (Bank v. Pirotte, 107 Kan. 573, 574, 193 Pac. 327.)
It is argued that in getting additional signatures on his renewal note Fred Reeves was acting for the bank, and was therefore to be regarded as the agent of the bank in the representations he made to Mrs. Snyder which induced her to sign it. This contention lacks merit. One who desires to borrow money at a bank, or to renew an indebtedness he has there, and who goes to another to get him to sign the note with him in order that he can get the bank to accept it, acts for himself and does not act for the bank. This matter is discussed in Trust Co. v. Gill, 113 Kan. 261, 267, 214 Pac. 413, where it was said:
“Even though the creditor prepared the necessary papers and named the persons or property which he would be willing to accept for security, the act of the debtor in obtaining the security is one for his own benefit, and the debtor is not the agent of the creditor in so doing.” (Citing a number of authorities.)
It is said that Mrs. Snyder received no consideration for signing the note. That is frequently true where one signs as surety for another, but that is a question that goes to the relation of the parties as between themselves. It has no effect so far as the payee of the note is concerned. Under our negotiable instruments act all persons who sign a note as makers are primarily liable thereon. (R. S. 52-103.) The question of who is principal and who is surety as between them is of no consequence to the payee. The negotiable instruments law does not use the word “surety” in this connection. It must be held, then, as a matter of law, that Mrs. Snyder, when she signed as maker with her son and others the note dated March 1, 1921, became primarily liable to the payee therein named for the amount of the note. That -liability was not lessened by what was done in March, 1922, or subsequently.
Defendants cite and rely upon National Bank v. Williams, 117 Kan. 501, 232 Pac. 252. That case arose on the pleadings, where an entirely different set of facts was alleged from that shown by the evidence here. It was there alleged that the bank had a financial interest in establishing and conducting the business for which the note in question was given, and for that reason had advanced the money to establish and conduct the business, and, for its own purposes, had the person conducting the business make a note to the bank for the amount, and that some time after the note had been given the officers of the bank then holding the note, which, if the allegations of the petition were true, represented in part its own indebtedness, requested Mrs. Williams to sign the note as an accommodation to the bank in order that it might use the note to its advantage. The allegations concerning the interests of the bank in the business being conducted, and the purpose for which the note was made, the time when Mrs. Williams was requested to sign, the fact that the officials of the bank, not the makers of the note, made the request, and the nature of the request and the explanation of why it was wanted, all were considered by this court when it held that the bank was not entitled to a judgment against Mrs. Williams on the pleadings. The real test of whom a party accommodates when he signs a note must be determined from the actual facts as they exist. In the Williams case, if the allegations of the answer were true, the bank actually was accommodated because of its financial interest in the business for which the note was given! In this case the bank had no financial interest in the matter for which the note was given. It had paid out to Fred Reeves $5,000 in money for the original note, and it was no accommodation to the bank to have that note renewed.
Not much else need be said. There is no evidence to support a finding that plaintiff signed for the accommodation of the bank; the question should not have been submitted to the jury. The judgment of the court below is reversed with directions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
R. G.. Young filed a petition alleging that Sydney Silverman, E. C. Davis and G. W. Goss, as a committee or board of trustees of the creditors of the Lyons Milling Company, treated as an insolvent company, were disposing of the assets of the milling company to creditors other than the plaintiff, who held certificates called preferred stock, alleged by plaintiff to be certificates of indebtedness, and were refusing to apply any of the’ proceeds of the milling company to his indebtedness. He asked that they be enjoined from disposing of the assets until plaintiff's right to participate as a creditor in the assets of the milling company be satisfied, and that he be given a judgment upon the certificates he held. In the petition it was alleged by plaintiff that he had acquired by assignment from D. R. Alter, the following certificate:
“Incorporated Under the Laws op the State op Kansas.
PREFERRED STOCK.
Number 98 Shares, Ten.
The Lyons Milling Company, Lyons, Kansas.
Capital Stock, $75,000.
“The preferred stock evidenced by this certificate shall be entitled to a dividend of seven per cent per annum, which the corporation guarantees. In case of the winding up of the affairs of the corporation, all shares of preferred stock shall be paid before the payment of any shares of common stock.
“The corporation reserves the right, to take up this preferred stock at any time after three years from the date of this certificate by paying the holder the face hereof and the accumulated dividends.
“This Is to Certify, That D. R. Alter is the owner of ten preferred cumulative nonvoting shares of the capital stock of the Lyons Milling Company, transferable only on the books of the corporation in person or by attorney on surrender of this certificate.
“In Witness Whereof, The duly authorized officers of this corporation have hereunto subscribed their names and caused the corporate seal to be hereto affixed at Lyons, Kansas, this ninth day of February, a. d. 1925.
“(Seal.)
“The holder hereof shall be entitled to receive the face value plus accumulated dividends upon the surrender of this certificate on and after February 9, 1927, and after thirty days’ notice in writing of holder’s intention to surrender this certificate. Interest payable quarterly.
W. B. Boyce, Sec.
G. C. Shtjmacher, V. P.
“Shares $100 each.”
It was alleged that under the certificate the milling company became indebted to plaintiff in the sum of $1,000 with interest thereon at the rate of seven per cent per annum, which entitled him to be paid out of the assets of the milling company pro rata with the general creditors of the corporation. He set up sixty other certificates of different dates, redeemable on thirty days’ notice, issued for varying amounts, which had been issued to others but assigned to him, and he alleged that the corporation orally agreed that the stock would be redeemed and the money therefor paid with a seven per cent dividend for interest, and that but for the promise the stock would not have been purchased by any of the stockholders.
A demurrer to the petition was filed by the defendants, which the court sustained, and the reasons for, the ruling were stated in the following opinion:
“This matter comes on to be heard before the court on the demurrers'of the defendants to plaintiff’s petition. The petition contains 61 alleged causes of action, and the prayer of the petition is that the plaintiff have judgment against the Lyons Milling Company for the different sums alleged to be due with interest, and the plaintiff further prays that he be declared to be a creditor of the Lyons Milling Company and permitted to participate in the distribution of the proceeds of the property of the Lyons Milling Company. The precise question to be determined by the court is whether the plaintiff is a stockholder or a creditor, the demurrer challenging the legal sufficiency of the petition. The different parties named in the petition when they made the purchases set forth in the petition knew that they were purchasing stock, and knew that they thereby became stockholders. They could not be both stockholders and creditors and, in my judgment, the court would have no right or authority to declare the plaintiff to be a creditor and not a stockholder of the Lyons Milling Company. The demurrer to the petition will consequently be sustained.”
Passing over the question that the petition does not show that the certificates of stock transferable only on the books of the company had been so transferred to the plaintiff, and as to whether he is the rightful owner of the shares, we will go directly to the question whether holders of such certificates are stockholders in the corporation or are creditors, and also whether the certificates represent shares in the corporation or are merely certificates of indebtedness. First, it may be remarked that it was competent for the corporation to issue not only common but also preferred stock. The legislature has provided that:
“It shall be lawful for any corporation now organized or that may be hereafter organized under and by virtue of the laws of the territory of Kansas or the state of Kansas to issue preferred stock: Provided, The holders of seventy-five per cent of the stock of any corporation so issuing preferred stock shall give their assent to such issue, etc.” (R. S. 17-234.)
Capital stock in the strict and proper sense of the term is the sum total which the corporation is authorized to issue, and as the amount paid or to be paid for the conduct of the business of the corporation, which for convenience, is divided into shares for which each member is entitled to a certificate showing the number of shares and the interest the holder has in the corporation. (14 C. J. 379.) The shares, whether common or preferred, are units of the capital stock, and such stock is in a sense a trust fund to be used only for corporate purposes and for the security of creditors. Ordinarily the certificates issued to stockholders are not evidence of indebtedness of the corporation to the holder, although the corporation is liable to the holder in the sense that on the winding up of the corporation the holders are entitled to a proportionate share of the assets of the company after the debts are paid. (14 C. J. 389.) It is insisted by the plaintiff that the certificates involved here, although designated as preferred stock, were in fact evidence of indebtedness, and that the holder should be regarded as a creditor rather than as a stockholder. The certificate which has been quoted has all the earmarks of preferred stock. It is so designated and purports to be so many shares of the capital stock of the corporation, declared to be $75,-000 in amount. It fixes the dividends to be paid, and provides that in case of the winding up of the corporate affairs, it shall be paid before the payment of the shares of the common stock and that the owner of these preferred nonvoting shares of the capital stock is only transferable on the books of the corporation. It is true, as plaintiff contends, that the designation of preferred stock in the instrument is not conclusive that the possessor is a stockholder, and that a certificate may be issued under such circumstances and in such form as to constitute a loan or evidence of indebtedness. However, if the stock is issued as preferred and it forms a part of the capital stock of the corporation, the holder is to be regarded as a stockholder and not a creditor, and the fact that the dividends are in terms guaranteed does not make him a creditor. (14 C. J. 416.) In Inscho v. Development Co., 94 Kan. 370, 146 Pac. 1014, where a corporation issued preferred nonvoting stock and the certificate provided for a fixed yearly dividend of seven per cent payable to the holders out of the earnings of the company before dividends on common stock should be declared, and that it should be preferred as to assets upon the winding up of the affairs of the company and should be redeemable at the option of the company after one year from the date of issue at par with accrued dividends, it was held that the certificate was a certificate of stock and not a certificate of indebtedness and that plaintiff was a stockholder and not a creditor. In the opinion it was said:
“The plaintiff purchased shares of the original capital stock of the company, received a certificate of stock, cast her fortunes with the company, took with it the risk of its ventures, and depended upon the net earnings of the company for returns upon- her investment. She was not guaranteed a seven per cent annual dividend at all events. If there were no net earnings she received nothing and could not, as creditors may do, appropriate capital or general assets to the satisfaction of her claim. The fact that preferred stock had no vote and the corporation reserved the right to retire preferred stock by redeeming it did not change this express feature of the contract. So long as she remained a stockholder her only source of returns was net' earnings, and if there were debts of the company she could not share such assets with creditors, in case of dissolution, but was merely preferred over common stockholders in case there were assets to distribute.” (p. 384. See, also, Abrahams v. Medlicott, 86 Kan. 106, 119 Pac. 376.)
It is argued that the guarantee of dividends expressed in the certificate characterizes the relation of the parties and requires that the transaction should be regarded as a contract to pay money. The guarantee in the certificate is not to be interpreted as an obligation to pay absolutely and unconditionally, but is only a guarantee to pay dividends out of the earnings when profits have accumulated out of which dividends may be paid. Stockholders are classified as common and preferred, and as between the classes preferences are permitted. Neither class, however, is entitled to dividends from any source except from the earnings and profits of the business. The guarantee of dividends inserted in the certificate is no more than a pledge that dividends shall be paid out of funds legally applicable to dividend purposes, and until there is a surplus of profits dividends cannot be paid to either class of stockholders. The corporation cannot pay dividends out of capital, as to do so would operate as a fraud upon creditors. The effect of such a guaranty was considered in Lockhart v. Van Alstyne, 31 Mich. 76, and in an opinion written by Judge Cooley, it was decided that where preferred stock .of a corporation was issued in pursuance of a resolution of the directors for the issue of such stock, “upon which a semiannual dividend of five per cent, payable in each year, shall be guaranteed by the company,” and where the certificates of such stock contained this amendment, "Five per cent semiannual dividend guaranteed,” it was held that under the guarantee the preferred stockholders were entitled to five per cent semiannual dividends when there were profits to pay them, and not otherwise.
In that case it was held:
“An indorsement on certificates of preferred shares in a corporation, issued by order of the directors, as follows: ‘Five per cent semiannual dividend guaranteed from September 1, 1872/ signed by the treasurer, is not to be understood as a guarantee that the corporation will pay dividends at all events, but only a guarantee to pay dividends to the holders of certificates in preference to others, when the earnings of the corporation will warrant it.
“A dividend, in the common understanding of the term, when applied to something to be paid by a corporation not insolvent, or in contemplation of dissolution, means a sum which the corporation sets apart from its profits to be divided among its members, and so the word must be understood in such a guarantee.” (Syl. ¶ ¶ 4, 5. See, also, Miller v. Ratterman, 47 Ohio St. 141; Tajt v. Railroad Co., 8 R. I. 310; Reagan Bale Co. v. Heuermann, 149 S. W. 228 [Tex. Civ. App.]; Spencer v. Smith, 201 Fed. 647; Field v. Lamson, 162 Mass. 388; Fletcher on Corporations, § 3762; 14 C. J. 414, and cases cited.)
The cases taking a contrary view cited by plaintiff are not in line with the rule in this state, nor are they in accord with the great weight of authority.
The provision for the redemption or retirement of the stock was not an unreasonable condition. It was one which the corporation was competent to make, and it did not take from the certificate the character of corporate stock nor convert the certificate into an evidence of indebtedness. (Fletcher on Corporations, § 3644.) Neither did the stipulation that the shares were nonvoting make the certificate illegal or anything other than corporate stock. (Inscho v. Development Co., supra.) The shares sold were not only called by the parties preferred stock, but it is manifest that none of the stipulations in the certificate nor anything in the transaction are inconsistent with the designation given to the shares by the parties. On the whole it is clear that the certificates cannot be treated as an evidence of indebtedness nor can the plaintiff be regarded as a creditor.
The judgment is afBrmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the state board of medical registration and examination to examine plaintiff to determine his qualifications to practice medicine and surgery, and if upon examination plaintiff be found to be qualified, to issue to him a certificate authorizing him to practice medicine and surgery in this state.
The motion for an alternative writ was supported by an affidavit setting forth what plaintiff claims his qualifications for examination are, and containing statements which were made the basis of a charge that the board willfully, capriciously and unreasonably refused to examine plaintiff. An alternative writ was issued which referred to the affidavit, and which commanded the board to examine plaintiff, and if proper legal qualifications appeared, to issue a certificate, or to show cause why the board did not do so. The board answered, and the cause is submitted on a motion for a peremptory writ. The motion refers to the affidavit on which the alternative writ was predicated.
The code of civil procedure contains the following provisions:
“The motion for the writ must be made upon affidavit, . . .
“On the return day of the alternative writ, or such further day as the court may allow, the party on whom the writ shall have been served may show cause, by answer made in the same manner as in answer to a petition in a civil action.
“No other pleading or written allegation is allowed than the writ and answer. These are the pleadings in the case, and have the same effect, and are to be construed, and may be amended, in the same manner as pleadings in a civil action; and the issues thereby joined may be tried and the further proceedings thereon had in the same manner as in a civil action.” (R. S. 60-1705, 60-1707, 60-1709.)
The motion for a peremptory writ is therefore the equivalent of a motion for judgment notwithstanding the answer, or for judgment for plaintiff on the pleadings.
Ordinarily the alternative writ embraces the full statement of facts contained in the verified motion, if the motion recite the facts, or in the affidavit supporting the motion, if the motion be formal and the affidavit state the facts. In this instance the writ was not so prepared. Following the words, “Whereas, it has been made to appear by affidavit,” were statements in the nature of conclusions of fact derived from the full statement of specific facts contained in the affidavit.. This being true, the plaintiff’s case rests ultimately upon the facts stated in the affidavit.
The answer contained a general denial. The general denial raised an issue of fact respecting every charge contained in the writ, and in strictness the motion for judgment cannot prevail while the facts are in dispute. The answer was extended, however, to include facts relied on by the board as justifying refusal to examine the plaintiff, and reading the writ, interpreted as indicated, and the answer together, it is plain the controversy relates to the legal sufficiency of the justification affirmatively pleaded.
Plaintiff desires to substitute what he thinks is sufficient study and training to qualify him to practice medicine and surgery, for the irreducible minimum required by rule of the board — graduation from a medical school whose courses of study, standards and equipment are approved by the American Medical Association. The reasons for the board’s approval of the American Medical Association classification of colleges of medicine and surgery are stated in the answer:
“That said American Medical Association is an organization composed of all the state medical societies in the United States, the District of Columbia, and Alaska, including the Kansas State Medical Society; that every physician in the state of Kansas who is a member of the Kansas State Medical Society in good standing is by virtue of such membership also a member of said American Medical Association; that the Kansas State Medical Society collects the yearly dues from its membership in the state of Kansas, and from this amount so collected a certain amount per capita is paid into the treasury of the American Medical Association, and this entitles each member of the Kansas Medical Society to full membership in, and all privileges of, the American Medical Association.
“That said American Medical Association has a council on medical education and hospitals, the function of which council is to investigate conditions of medical schools, hospitals, and associated subjects throughout the United States, and to suggest the means and methods by which the same may be improved; that said American Medical Association has spent, and is spending, a large amount of time and money in every phase of medical research work throughout the United States; that it has made a thorough investigation of all the laws of every state in the Union relating to education in medicine and surgery, and has made a thorough and careful inspection of every medical college in the United States as to its equipment, clinical facilities, and its qualifications to teach medicine and surgery; that as a result of its labors said American Medical Association has classified the medical colleges according to their qualifications for teaching medicine and surgery, equipment for teaching, and clinical facilities, into classes A, B, and C as aforesaid; that no state medical board or association is financially able to investigate and classify the various medical colleges of the United States in such manner, and for this reason the defendant board, in common with the licensing medical boards of many other states of the Union, has adopted and follows the classification of American medical colleges made by said American Medical Association.”
The board’s reasons for refusing to examine plaintiff are stated in the answer:
“That plaintiff is a graduate of the Kansas City University of Physicians and Surgeons in Kansas City, Mo.; that he was graduated from said institution on the 27th day of May, 1926, and that he is a graduate of no other medical college or university.
“That said Kansas City University of Physicians and Surgeons is, and ever since its existence has been, a class C medical college or university, as classified by said American Medical Association, and is not recognized by the licensing medical boards of forty-seven states in the Union and Alaska; that said Kansas City University of Physicians and Surgeons is only recognized by the licensing medical boards of the state of Massachusetts and the District of Columbia.
“That section 7331, Revised Statutes of Missouri, 1919, provides that the state board of health of said state shall have general supervision over the registration of all practitioners of medicine and surgery in such state, and that said board of health does not recognize said Kansas City University of Physicians and Surgeons, and that said institution has been reported by said board of health of Missouri to the defendant board as a nonreputable medical college.”
The result is, the case is governed by the decision in the case of Jones v. Board of Medical Examination, 111 Kan. 813, 208 Pac. 639, and the writ is denied. | [
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The opinion of the court was delivered by
Harvey, J.:
These are two actions for damages for libel. Harry Chisler is plaintiff in one and Wilbur E. Stone in the other. The pleadings are identical except the names of the plaintiffs. The defendants are H. E. Randall, George E. Gano and F. S. Macy. The cases were consolidated and tried to a jury in the court below. Each of the plaintiffs recovered a judgment for $17,043.75 against all of the defendants. The defendant Gano alone appeals.
The material facts disclosed by the record are substantially as follows: George E. Gano is a resident of Hutchinson. He has been engaged in the grain business for many years and has other financial interests. He and his associates had oil and gas leases on certain lands in Reno county. They made a contract with one Haines to drill an oil well on what is known as the O’Halloran lease, near Cast-leton. Haines began the work, but became involved in financial difficulties and discontinued it. Gano and his associates then made a contract with D. E. L. Byers to complete the drilling of the well to a depth of 3,500 feet. Among other things, Byers was to furnish the casing to be used in the drilling. The plaintiffs in these cases, Harry Chisler and Wilbur E. Stone, reside at El Dorado. Stone was engaged in the banking business and Chisler in the oil business, but together and as partners they, for several years, handled casing for oil wells, leasing or selling the same to parties throughout the mid-continent oil field. Byers made a written agreement with Chisler and Stone by which he leased from them (with an option to buy) 3,000 feet of 6%-inch casing, which he used in drilling the well on the O’Halloran lease. When Byers had drilled' the well to a depth of about 3,150 feet some difficulty arose and he had a settlement with Gano and his associates by which he quit drilling, and the well was taken over by Gano and C. W. Huffines. At that time about 2,300 feet of the casing Byers had leased from Chisler and Stone was in the well, and about 700 feet on the racks near the well. Chisler and Stone learned of this situation and went to Gano to get pay for the lease on the casing which Byers had agreed to pay. Gano declined to pay this. Chisler and Stone then wanted to get the casing. There was some talk about that, the particulars of which we shall not attempt to state; but as a result thereof Chisler and Stone brought an action in the district court of Reno county against Byers, Gano and HufHnes for the conversion of the casing and for its value. That action has been to this court twice (121 Kan. 478, 247 Pac. 850, and 124 Kan. 200, 257 Pac. 929). Gano employed the defendant, F. S. Macy, as his attorney to represent him in that action. While that action was pending the 2,300 feet of casing in question which was in the well was pulled, and all of it lay on the racks or on the ground near the well for some time. Then it disappeared. Gano further employed Macy to attempt to locate it. Macy discussed the matter with Undersheriff Fay Brown and laid the matter before the county attorney, Mr. Aelmore. It is evident that from such information they had, the parties thought it possible the casing might have been taken back to the premises of Chisler and Stone at El Dorado, or that it might have been moved by some one to the Richardson location in Stafford county, where the defendant H. E. Randall and one Johnson had started a well. At any rate the county attorney executed an affidavit for a search warrant and filed the same before Terrance F. Cox, justice of the peace, at Hutchinson. Upon this a search warrant was issued purporting to authorize the sheriff to search for the missing casing at the premises of Chisler and Stone at El Dorado and the Richardson lease in Stafford county. No point is made in this case of the validity of this affidavit and search warrant under our constitution (Bill of Rights § 15) and statute (R. S. 62-1802, 62-1803), hence we pass that question. Under this purported search warrant Undersheriff Brown, accompanied a part of the time at least by Macy, made investigations and located the missing casing on the Richardson lease in Stafford county, found that it had been hauled there by G. W. Ford of El Dorado, an oil-well driller and the operator of trucks for the hauling of oil-well material, and that Ford had been employed to move the casing by the defendant, H. E. Randall, an oil-well operator who resided at Wichita. Brown made a return of the search warrant and filed it with the justice of the peace. Gano learned of this May 4. He called Randall at Wichita by telephone and asked him to come to Hutchinson and explain by what authority he had moved this casing. Randall went to Hutchinson the morning of May 5, and to Gano’s office. Randall’s first explanation was that he had some judgments against Haines in the district court of Reno county, and he thought that gave him a right to take anything from the O’Halloran lease which Haines had left there. He further contended that he had an agreement with Chisler and Stone by which they were to lease him casing for the well on the Richardson location in Stafford county, and further represented that he thought, or understood, that Ford was the agent of Chisler and Stone and had hauled the casing for them. But in any event he represented that he could see Chisler and Stone and arrange to have the suit which had been brought by them against Gano and others dismissed. Mr. Gano asked him if he would be willing to make a statement in writing of the explanation he made, and he said he would. Gano then called his attorney by telephone, and Mr. Macy and the deputy sheriff, Mr. Brown, went to Gano’s office. There Mr. Macy dictated a statement, prompted by Randall from time to time, of what he represented the facts to be. Another statement in the form of a letter to Mr. Gano was written and signed by Randall, in which he definitely agreed to have the action for conversion brought by Chisler and Stone against Gano and others dismissed with prejudice, and to pay the- expense of the search-warrant procedure within two days. Randall accompanied Mr. Macy to the office of Mr. Cox, the justice of the peace, where the statement he made concerning the finding' of the casing was read to him, he stated it was true and signed and swore to it before the justice of the peace, and it was filed as one of the papers in the search-warrant proceedings. A Mr. Welsh, a reporter for the Hutchinson News, dropped into the office of the justice of the peace, either while Macy and Randall were there, or a little later, learned of the affidavit, and examined it, thereafter had some talk with Mr. Macy and the undersheriff, Mr. Brown, concerning it, and wrote an article which appeared in the Hutchinson News. This article, either by •direct statement or by fair interpretation, connected Chisler and Stone with the moving of the casing from the O’Halloran lease to the Richardson location in Stafford county, and indicated that the same was done surreptitiously and to gain some advantage in their suit for conversion then pending in Reno county against Byers, Gano and Huffines. The article, in so far as it relates to Chisler and Stone having anything to do with moving the casing, is libelous .as to them, if false, and it was proved to be false.
The publication of this article in the Hutchinson News is the libel complained of in this case. The petition alleges in substance that Randall, Gano and Macy, conspiring together for the purpose of defeating Chisler and Stone in the conversion action then pending, and to injure their good name in the community in which they lived and the territory in which they were known and transacted business, composed and caused to be published the libelous article in the Hutchinson News. It is further alleged that Macy was the agent of Gano in respect to the publication; This allegation of agency was denied under oath by Gano, and all material matters were put in issue by the answer.
These actions were filed in Sedgwick county, where service of summons was had upon Randall, who resided in Wichita, and summons was sent to and served by the sheriff of Reno county on Gano and Macy, who resided in Hutchinson.
It- is first argued on behalf of Gano that the action was not the proper forum as to him. We do not regard it necessary to analyze and decide this question, in view of the conclusion wé have reached upon another point raised.
Appellant contends that his demurrer to the evidence should have been sustained, that there was no evidence in the record that he had anything to do with the publication of the libelous article, or that he talked with or conspired with anyone concerning it, and no evidence that Macy was his agent with reference to such publication. This contention must be sustained, and it is decisive of this appeal.
Randall, it appears, is a man who has no regard for his word or even for his oath. All of the statements about Chisler and Stone having any part in moving the casing from the O'Halloran lease, or Ford being the agent of Chisler and Stone, made by Randall to Gano and incorporated in the affidavit dictated by Macy on the statements of Randall, and suggested and prompted by Randall, and sworn to by Randall before the justice of the peace after being then read to him, proved to be false. In this case Randall testified they were false, and other evidence at this trial thoroughly establishes that they were false. But there is nothing in the record tending to show that Gano prompted or had anything to do with making these false statements, or that he had any intimation at the time that they were false. Gano was then defendant in an action for the value of this casing, predicated on the theory that he had converted it to his own use. When the casing mysteriously disappeared it was natural and proper for him to make inquiry as to what became of it, who took it and by what authority. When he learned that Randall had something to do with moving the casing he sent for Randall and let him tell his story, and suggested that he put it in writing, which Randall was willing to do. There is quite a little said in the argument as to whether this affidavit, made by Randall and filed with the justice of the peace in the search-warrant proceeding, was a privileged communication. It is argued on behalf of appellant that when a search warrant issued for the search of stolen property is returned, the magistrate, under R. S. 62-1807 to 62-1813, has other duties to perform, which include conducting hearings with reference to disposition of the property, hence that the statements made in this affidavit were proper to be filed in that case and became a part of the court proceedings, and were therefore privileged. On the other side, it is argued that the search-warrant proceedings were closed by the return made by the undersheriff on May 4. We are not called upon in this case to decide whether the statements made in this affidavit are privileged. The actions for damages in these cases are not based upon this affidavit, nor the fact that it was filed with the justice of the peace. They are predicated upon the article published in the Hutchinson News. The matters relating to this affidavit and its filing get into this case only as a part of the history leading up to the publication complained of. There is no evidence in this case that Gano had anything to do with the publication of the article in the newspaper, or that anyone ever spoke to him about such publication, or that he knew that any publication concerning the matter was to be made. Mr. Welsh, who testified on_behalf of plaintiffs concerning the preparation and publication of the article complained of, says that he wrote the article himself, that he got the information from the affidavit filed in the search-warrant proceedings, and that was furnished to him by Mr. Cox, the justice of the peace; that thereafter he talked with Undersheriff Brown, and also with defendant Macy, but from him learned no more of the connection of Chisler and Stone with removing the casing than the affidavit disclosed.
It is argued on behalf of appellees that Mr. Welsh, having talked to Macy and from him learned something of the facts included in the libelous article, and Macy thereby learning that an article would likely be published in the newspapers concerning the matter, together with the fact that Macy was attorney for Gano in the action brought against him for conversion of the casing and in the search-warrant proceeding, that Gano is thereby bound by the libelous matter in the publication. That result does not follow under the evidence in this case. An attorney employed to conduct litigation is agent for his client in matters respecting the litigation only. (6 C. J. 637; McNeal v. Gossard, 68 Kan. 113, 74 Pac. 628.) The client is not responsible for unauthorized defamatory communications made by his attorney (37 C. J. 14), and certainly not for those made outside the scope of his employment (6 C. J. 638). Plaintiffs alleged that Macy was the agent of Gano with respect to the libelous publication. That allegation of agency was denied by Gano under oath, hence the burden was upon plaintiffs to produce some substantial evidence to sustain that allegation. They produced no evidence to sustain it other than the fact that Macy was the attorney employed by Gano in defense in the action for conversion of the casing and in the search-warrant proceeding, and this, under the authorities above cited, is wholly insufficient to establish the fact that Macy was Gano’s agent in respect to the libelous publication.
Appellees argue that a conspiracy may be shown by circumstantial evidence, that from the nature of a conspiracy it is often difficult to get direct evidence. This is true, but that fact does not dispense with evidence. If a conspiracy, or any other essential matter in a case, is established by circumstantial evidence, there must be substantial evidence of circumstances from which it necessarily follows, or at least is reasonable to infer, that such conspiracy or material matter existed. There is no such substantial evidence here. The real proof is that Gano knew nothing about any publication concerning the matter until after it was made. It was argued that Gano should have suspected that if the Randall affidavits were filed with the justice of the peace a newspaper reporter might see it and write a story concerning it. Perhaps it is a complete answer to that to say the question of what was done with that statement, whether it was filed in the justice of the peace court, Gano left to his attorney, as any client leaves such matters to his attorney. But a more forceful answer to it is that we do not render damages on theories of that character. When a substantial sum — here about $35,000 — is to be taken from the property of one man and given to others, there must be a substantial reason for it. It cannot be predicated on suspicion, theories and conjecture.
The result is that there is no substantial evidence on behalf of plaintiff to establish Gano’s responsibility for the publication of the article in the Hutchinson News. His demurrer to plaintiff’s evidence should have been sustained.
The judgment of the court below is reversed with directions to enter judgment for defendant Gano. | [
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'The opinion of the court was delivered by
Harvey, J.:
In the former opinion filed in this case (122 Kan. 260, 251 Pac. 1112) the judgment of the court below was reversed, with directions to enter judgment for defendant, the court holding that the case was controlled by the rule of law stated in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193; 93 Kan. 257, 144 Pac. 249, and allied cases. A rehearing was granted. The case has been reargued, additional briefs have been filed, and we have sent for and examined the papers and transcript filed in the court below. Upon this further consideration we are now of the opinion that our former conclusion was erroneous, and that the case is not controlled by the rule of law stated in the Shade case.
This action was brought as an ordinary action for damages to dependents for a wrongful death (R. S. 60-3203) of an employee of defendant, alleged to have been caused by the negligence of defendant in failing to comply with the safety provisions of the mining laws (R. S. 49-214 et seg.), by reason of which negligence poisonous gases accumulated in the mine where the employee worked, and were necessarily inhaled by him- day by day, whereby his system became gradually poisoned, resulting in his death. In the petition it was specifically alleged that the injury sustained by the employee did not come within the provisions of the workmen’s compensation act. The answer denied the negligence alleged, contained a plea of contributory negligence, and alleged that at the time of the alleged injury to the employee he and defendant were engaged in mining, and were operating under the provisions of the workmen’s compensation act, which was the exclusive measure of recovery; and further alleged as a former adjudication of the rights of the parties that plaintiff had theretofore brought an action seeking compensation as dependents under the workmen’s compensation act against defendant for the same injury, which action had been tried on issues joined and resulted in a judgment for defendant. The reply averred that the only thing determined in the prior case was that the death of the employee was not the result of personal injury by accident, within the meaning of the workmen’^ compensation act; other defenses of the answer were denied.
While the evidence on these questions was in conflict, there was evidence to support the allegations of plaintiffs’ petition as to the negligence of defendant in the failure to comply with the safety-provisions of the mining laws, to the presence of poisonous gas in the mine, which was inhaled by Echord from day to day, resulting' in his illness and death. The jury returned a verdict for plaintiffs for $5,000, and answered special questions as follows:
"2. Was Jesse Echord’s death due to the sudden, escaping of poisonous gases in the mine and the inhalation by him? A. No.
“3. If you answer the above question in the negative, then state what was the real or proximate cause of his death? A. Inhaling poisonous gas from, day to day.”
Judgment was rendered for plaintiffs on the verdict;'defendant’s motion for a new trial was overruled, and he has appealed.
Appellant contends that since the parties were engaged in the business of mining, they were necessarily operating under the provisions of the workmen’s compensation law (R. S. 44-507); that the remedies afforded by the workmen’s compensation law are exclusive, and that therefore, this action for damages cannot be maintained, citing and relying on Shade v. Cement Co., supra, and allied cases.
It is well settled that the remedies provided by the workmen’s compensation law are exclusive when the workman and his employer are operating under that law, and the injury complained of is one within the purview of the law (Shade v. Cement Co., supra; Moeser v. Skunk, 116 Kan. 247, 226 Pac. 784); but it is just as true that the workmen's compensation law has no application if the parties were not operating under it (Smith v. Cement Co., 94 Kan. 501, 146 Pac. 1026; Menke v. Hauber, 99 Kan. 171, 160 Pac. 1017), or if the injury complained of is not within its provisions (Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657; Alvarado v. Rock Crusher Co., 109 Kan. 192, 197 Pac. 1091; Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174; Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113; Carter v. Uhrich, 122 Kan. 408, 252 Pac. 240).
The pertinent statute reads:
“If in any employment to which this act applies personal injury by accident arising out of and in 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 this act. . . .” (R. S. 44-501.)
Before a workman, or his dependents, can recover compensation under the workmen’s compensation law it must be shown that the workman sustained personal injury, (1) by accident, (2) arising out of, (3) and in the course of his employment. (R. S. 44-501.) Here it was shown that the injury arose out of and in the course of the employment, but the question still remains, Did the workman sustain personal injury “by accident,” as that term is used in the law? Early in the administration of the workmen’s compensation law in this state, in the case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, the meaning of the word “accident” as used in the statute was discussed. In the opinion it was said:
“An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force. The word undesigned must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition; but as definitions go, the one here proposed is correct, at least for present purposes.” (p. 773.)
There was further discussion as to the distinction between injury as one thing, and accident producing it as another. On this point were reviewed a number of English cases, construing the English compensation act, the language of which was adopted by our legislature, and it was held that this word “accident” may apply to what happened to the workman, although it may have resulted from the intentional performance of usual acts in the usual way.
The definition of the word “accident” as it is used in our workmen’s compensation law, given in the case just cited, has been followed in all cases involving the question arising in this court since that decision. (Cox v. Refining Co., 108 Kan. 320, 324, 195 Pac. 863; Blackburn v. Brick & Tile Co., 107 Kan. 722, 726, 193 Pac. 351; Gilliland v. Zinc Co., 112 Kan. 39, 209 Pac. 658; Hoag v. Laundry Co., 113 Kan. 513, 514, 215 Pac. 295; Stark v. Wilson, Receiver, 114 Kan. 459, 462, 219 Pac. 507; Stringer v. Mining Co., 114 Kan. 716, 718, 220 Pac. 168; Chop v. Swift & Co., 118 Kan. 35, 37, 233 Pac. 800. Also in Cherdron Constr. Co. v. Simpkins, 61 Utah, 493, and Frandila v. Dept. of Labor & Industries, 137 Wash. 530.)
And it has been repeatedly held that to authorize a recovery under the workmen’s compensation law there must have been a “personal injury by accident.” (Monson v. Battelle, 102 Kan. 208, 170 Pac. 801; Gilliland v. Zinc Co., supra; Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Chop v. Swift & Co., supra.) Our workmen’s compensation law does not cover personal injury resulting from occupational diseases as distinct from accidents. (Chop v. Swift & Co., supra.)
One of the elements entering into a definition of the word “accident” as used in compensation statutes is that of suddenness. There must be a time, place or circumstance when the thing called an accident happened, took place or occurred. All the courts seem to agree on this, although there may be difficulty in determining whether the thing or things being considered constituted an accident.
The case before us is similar to that of Hendrickson v. Continental Fibre Co., 136 Atl. 375 (Del.), not cited by counsel. In that state the workmen’s compensation law provides for the payment of compensation only for personal injury which is the result of an accident. While the language of the Delaware statute is not identical with ours, in this respect they are so similar the case is directly in point on the question now being considered. That was a common-law action to recover damages on account of certain diseases alleged to have been gradually contracted by the plaintiff over a period of about six months by reason of his work with a certain chemical in an experimental process in the manufacture of fiber. The question arose on a demurrer to the petition. It was argued by defendant that the diseases as contracted by plaintiff were personal injuries sustained by the plaintiff during the course of his employment by the defendant, and as such are cognizable under the workmen’s compensation act, and that since such act is the exclusive remedy of the matters cognizable by it that this common-law action could not be maintained. This argument was found to be without merit. The court held:
“Slow, gradual, idiopathic disease, unaccompanied and unrelated to any injury by accident, but caused by exposure to acid and chemicals, is not embraced within the terms of workmen’s compensation law, . . . since it was not ‘violence to the physical structure of the body,’ which requires force, sustained by accident or resulting disease; ‘accident’ having element of suddenness, and requiring injuiy to be referable to definite time, place, or circumstance. . . .”
This case is not controlled by the rule of law stated in Shade v. Cement Co., supra, for the reason that there no question arose as to whether the injury complained of was the result of an “accident,” and that question was not discussed in the opinion. There the workman’s clothes (or arm) were caught in machinery, not safeguarded as required by the factory act, and the workman was killed. The injury itself contained all the elements of an accident, as that term was defined in Gilliland v. Cement Co., supra. The controversy there was over the exclusiveness of the remedy. Plaintiffs had brought the action as one for damages, and contended that they had the right to elect whether to sue for damages or to apply for compensation under the workmen’s compensation act. That contention was denied, and it was held that the remedy afforded by the workmen’s compensation law was exclusive. It was not held in that case that the remedy afforded by the workmen’s compensation law was exclusive in a case where the injury complained of was not the result of an accident, as that term is used in the statute. Hence, while there is nothing wrong with the rule of law stated in the Shade case, and it has been repeatedly followed, it has no application if the parties were not operating under the workmen’s compensation law, or if the injury complained of is one which is not compensable under that law.
Here the case, as we now view it, turns, first, on the question of whether the death of the workman was the result of personal injury by accident, as that term is used in the statute. (R. S. 44-501.) The petition alleged that it was not so caused; that the injurious effect of the poisonous gas was gradual, from day to day. The answer denied these allegations, thereby putting.the question in issue. The jury specifically found that the workman’s death was not due to the sudden escape of poisonous gas inhaled by him, but that the real and 'proximate cause of his death was inhaling poisonous gas from day to day. This, under the authorities above cited, and especially Hendrickson v. Continental Fiber Co., supra, marks the case one not ’ governed by the workmen’s compensation law. And, second, is there liability here for negligence? Since the workmen’s compensation law has no application, we consider the' case as though that law had not been passed. The statute (R. S. 49-214 et seq.) requires certain provisions for the safety of workmen in mines. These statutes are not repealed by the workmen’s compensation law. In Smith v. Cement Co., supra, it was held the factory act was not so repealed; the same reasoning applies here. If the injury is not one which is compensable under the act, the ordinary rules applicable in negligence cases apply. (Brooks v. Coal & Coke Co., 96 Kan. 530, 152 Pac. 616.)
As to whether defendant was negligent in the respect alleged by plaintiffs, and, if so, whether such negligence caused the death of the workman, there was a conflict of evidence. One thing the parties agree upon — that the immediate cause of the death of the workman was acute encephalitis, commonly known as brain fever. It was plaintiff’s theory that acute encephalitis is not in all cases a germ disease; that it may be produced by an accumulation of the effects of breathing from day to day air containing carbon monoxide gas, and that such gas was present in the mine, due to the negligence of defendant in not complying with the safety provisions of the mining law, and that it was so produced in this case. There was substantial evidence which, if believed by the jury, supported that view. Defendant contended that there had been no violation of the safety provisions of the mining laws; that there was no carbon monoxide gas in the mine where Echord worked, or, if any, it was so little it would not produce serious effects on any one; that acute encephalitis is always a germ disease, or at least the attack which caused the death of Echord was such, and could not possibly have been caused by the inhalation of carbon monoxide gas; that Echord’s illness began with influenza, commonly called the “flu,” and developed into acute encephalitis resulting in death, and that it was in no way related to or caused by his employment. The jury heard this evidence, and decided the controversy concerning it in favor of plaintiffs. This has been approved by the trial court, and is binding on us.
In presenting one portion of his defense, defendant offered in evidence the judgment and proceeding in the former case. These were excluded on plaintiffs’ objection. Defendant complains of this ruling. The former case was this: Plaintiffs had made claim as ’ dependents under the workmen’s compensation law, and had applied to the court for the appointment of an arbitrator. On the hearing of this' application, after argument of counsel, the court made an order that plaintiffs file a petition setting forth the facts regarding their claims against defendant; that defendant plead thereto, and that the action proceed in form as a civil action to be tried to the court. In compliance therewith plaintiffs filed a petition, alleging that they were the widow and minor children of Jess Echord, deceased, and were wholly dependent on him; that he was employed by defendant as a miner; that he inhaled poisonous gases in the course of his employment, which caused his illness and death, and alleged other facts essential to recovery under the workmen’s compensation law. Defendant answered, denying the allegations of the petition, and specifically denied that the death of Jess Echord resulted from any injury by accident arising out of and in the course of his employment. There was a trial; both parties introduced evidence. The court found (1) that the facts alleged by claimants do not constitute a personal injury by accident arising out of and in the course of the employment, and' (2) that the facts fail to show that the death of Jess Echord was caused by personal injury by accident arising out of and in the course of his employment, within the meaning of the workmen’s compensation law. Judgment was rendered for defendant. No appeal was taken from that judgment.
Thereafter the same plaintiffs brought this action.
Defendant contends that the judgment in his favor in the prior action bars the rights of plaintiffs to recover here. This contention cannot be sustained. It is clear that the only question determined in. the former- action, was whether plaintiffs could recover under the workmen’s compensation law, and that depended on whether the death of Jess Echord resulted from personal injury by accident arising out of and in the course of his employment. The decision of that question, adverse to plaintiffs, did not bar their right to recover for the negligence of defendant resulting in injury not compensable under the workmen’s compensation law. But defendant argues that the trial court in the first case may have decided for defendant because he believed the evidence of defendant’s witness, that Echord’s death was the result of flu which developed into brain fever, and was in no way attributable to his employment. The record indicates that this question was riot raised at that hearing;, that the only .'question presented or determined was whether personal injury •resulting from inhaling poisonous gas from day to day, so that no . time when such injury occurred could be stated, was personal injury by accident within the meaning of the workmen’s compensation law. This view is strengthened by the fact that the judge who tried the first case presided at the trial of the second one, and there made the ruling now complained of. Had he entertained any such idea as defendant now suggests he may have entertained, his ruling in this case would have been different.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover agreed compensation to be paid to him for assisting the defendant in the purchase of certain real property in Clark county. Judgment was rendered in favor of the defendant on his demurrer to the evidence of the plaintiff, who appeals.
The petition alleged that the defendant employed the plaintiff to assist the former in the purchase of a tract of 2,480 acres of land in Clark county from John Simmons at $15 an acre, and agreed to pay the plaintiff for his services the sum of fifty cents an acre; that the plaintiff fully performed the services under his contract with the defendant and arranged for the purchase of the tract for $35,000, and that the defendant refused to pay the plaintiff for such services.
There was evidence which tended to prove the- employment as alleged; that the plaintiff and the defendant went to the tract of land and examined it; that the plaintiff with the consent of the defendant went to John Simmons, had a conversation with him concerning the purchase of the land and agreed upon the price to be paid, $35,000, $2,200 less than the defendant was willing to pay; that the plaintiff and the defendant and John Simmons then went to Ashland, where a contract was signed by the defendant and John Simmons for the sale of the land by the latter to the defendant; that at the time the contract was signed John Simmons executed a deed conveying the land to the defendant; that before the contract was signed some differences arose over the initial amounts that were to be paid, because the defendant did not have the necessary amount of money in the bank on which to check; that this matter was adjusted by his stating he would go home and come back with the check the next morning; that the contract and a deed conveying the property to the defendant were deposited in a bank in Ashland, but the preliminary payments were not made; that the next morning the defendant notified the plaintiff that he would not carry out the contract nor be bound thereby; and that after the refusal of the defendant to carry into execution the terms of the contract, it was rescinded.
1. The plaintiff contends that the demurrer to his evidence should not have been sustained. On an appeal from a judgment in favor of the defendant, rendered on his demurrer to the evidence of the plaintiff, only the evidence favorable to the plaintiff need be considered. [Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036; Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Kerr v. Kerr, 80 Kan. 83, 101 Pac. 647; Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008; First National Bank v. Lovett, 123 Kan. 405, 407; Carlisle v. Baker, 123 Kan. 415, 418.) The plaintiff’s evidence established a prima facie case and should have been submitted to the jury.
2. It is argued that there was no meeting of the minds of the landowner and the defendant. The answer to that argument is that they signed a written contract for the sale and purchase of the land, the terms of which contract neither of them could dispute in an action between them because there was no evidence to show any fraud or mistake.
3. The defendant contends that the contract between him and the plaintiff was that fifty cents an acre should be paid when the transaction was completed, and that the sale was never completed. The difficulty with this contention is that there was evidence which tended to prove that the sale was not completed because the defendant refused to perform the contract he had .signed for the purchase of the land. This court has often said, in substance, that an agent employed to sell real property earns his commission when he procures a purchaser, ready, willing, and able to buy the property on the terms given by the owner, although the owner when the purchaser is produced refuses to sell the land. [Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592; Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116; Staley v. Hufford, 73 Kan. 686, 85 Pac. 763; Johnson v. Huber, 80 Kan. 591, 103 Pac. 99; Beougher v. Clark, 81 Kan. 250, 106 Pac. 39; Green v. Fist, 89 Kan. 536, 132 Pac. 179; Lyman v. Wagner, 90 Kan. 12, 132 Pac. 988; Hutton v. Stewart, 90 Kan. 602, 135 Pac. 681; Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629.) Under the rule followed in these cases, the defendant, by refusing to perform the contract, could not defeat the plaintiff’s right to receive the compensation that had been earned by him in negotiating the sale and in securing the signature of John Simmons to a contract, binding on him, agreeing to convey the land to the defendant when he had complied with the terms of the contract.
The judgment is reversed and a new trial is directed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by a minor, commenced in the district court of Sedgwick county by her guardian against the de fendant corporation, seeking to recover under the workmen's compensation law of Kansas as a dependent of her father on account of his death having resulted from injuries received while in the employ of the defendant. It was tried upon an agreed statement of facts and judgment was rendered in favor of the defendant, from which plaintiff appeals.
The injury occurred on- August 1, 1925. Suit was filed by the injured workman against the defendant company September 23, 1925. Settlement for the sum of $3,000 was made on November 6, 1925, at which time the suit was dismissed with prejudice, the $3,000 paid, and a full release was signed by him and his wife. Prior to the settlement there had been paid to him by the defendant $131.33 as compensation and $150 as medical and hospital fees. At the time of the accident, August 1, 1925, the wife of the workman was pregnant, and the child, plaintiff herein, was born March 12, 1926. The workman, as a direct result of the injuries received on August 1, 1925, died July 4, 1926. The workman had been in the employ of the defendants for several months prior to the injury and his average weekly earnings during such period were in excess of $25 per week.
The issues involved center around three points: First, Is a child born after the accident but prior to the death of its father, the workman, a dependent and entitled to death benefits? Second, Does the release given by the workman of his claim for injuries under the workmen’s compensation act bar a recovery by the dependents of death benefits? And third, What are the proper deductions, if any, authorized by statute from the death benefits?
The following is the part of the workmen’s compensation act of Kansas upon which this action is based:
“The amount of compensation under this act shall be: 1. Treatment and care of injured employees. On demand, the employer shall pay the cost, not exceeding $150, of a physician and all such medical, surgical and hospital treatment. ... 2. Where death results from injury, (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section 4 of this act, but not exceeding thirty-eight hundred dollars ($3,800) and not less than fourteen hundred dollars ($1,400): Provided, That any payment under this act on account of any injury from which death shall thereafter result, except such payments as may be made under paragraph 1 of this section, shall be deducted from such sum. ... 3. Where death does not result from the injury. (a) Where total permanent disability results from the injuiy. . . .” (R. S. 44-510.)
R. S. 44-508 defines the word dependents as follows: “ ‘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.” This section further defines the term members of the family to include children and the word children to include stepchildren.
Another section requiring special consideration herein is as follows : .
. “The cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman or his dependants or legal representatives at the time of the accident; and the time limit in which to commence an action for compensation therefor shall run as against him, his legal representatives and dependents from the date of the accident.” (R. S. 44-535.)
The plaintiff is frequently referred to in this case as a posthumous child. Strictly speaking, it is not such, as it was born before the death of its father. Many of the citations given are not helpful in Kansas, because we find many of the compensation laws in other states specifically mention a posthumous child as being included in the term family, but ours only uses the word children, and then states that it includes stepchildren. The section last above quoted leaves no room for debate as to the time when the cause of action under our compensation law accrues. It is at the time of the accident, for dependents as well as all others. The situation may be somewhat different as to dependents after the death of the workman; for instance, a child living at the time of the accident may have died before the death of the workman, or a wife may have been divorced between those dates. But whatever may have occurred between those two dates the cause of action must have accrued at the time of the accident. Was the plaintiff in this case a dependent at the time of the accident?
“For certain purposes, indeed for all beneficial purposes, a child en ventre sa mere is to be considered as bom. ... It is regarded as in esse for all purposes beneficial to itself, but not to another. . . . Formerly this rule would not be applied if the child’s interests would be injured thereby . . . but, for the purpose of the rule against perpetuities, such a child is now regarded as a life in being, even though it is prejudiced by being considered as bom. . . .
Its civil rights are equally respected at every period of gestation.” (1 Bouvier, 1038.)
“A child en ventre sa mere at the time of the father’s death is deemed to have been born so far as it is for. the benefit of such child, and will be entitled • to claim compensation as a legal dependent, providing the child is legitimate; and the posthumous child of a deceased workman would have the same rights to compensation as other children.” (Harper, Workmen’s Compensation, 2d ed., p. 261.)
“Where the father of the unborn child of an unmarried woman publicly expressed his intention to marry the woman and four days prior to the marriage was killed, it was held that the child was entitled to an award for total dependency.” (1 Schneider on Workmen’s Compensation Law, p. 961.)
We conclude that the plaintiff is a dependent within the meaning of the law and is entitled by her guardian to maintain an action in this case as such.
Does the release given by the workman bar dependents of death benefits? It will if the action of the dependent is' in the nature of a revivor of the action the workman could have maintained in his lifetime, because he by his release effectually settled and forever disposed of any and all claims he had at the time of giving the release or could have had at any future time, because under the statute the cause of action accrues at the time of the accident. If there can be only one recovery and no more, and the action of the dependent is intended as a substitute for the action by the workman himself if he had lived, then the release must be a bar to a recovery by the dependent. Two well considered cases in our own state place constructions upon two similar statutes from which decisions, comparisons and distinctions can readily be made. In the case of Sewell v. Railway Co., 78 Kan. 1, 96 Pac. 1007, where the action was brought by the widow against the railway company under the statute for death by wrongful act, it was said in the opinion:
“Essentially the two causes of action referred to, although based upon the same wrongful act, are separate and distinct. Logically there is no reason why two actions should not be instituted and prosecuted to a conclusion — one by the injured person for the loss that results to him from the defendant’s wrong, and the other by those dependent upon him on account of the support of which they are deprived by his death, just as each spouse may sue for damages consequent upon a tortious injury done to the wife. A plausible argument might originally have been made that such was the purpose and effect of the Kansas statute (inasmuch as it provides [Civ. Code, § 420] that causes of action for injuries to the person shall survive), and that where the plaintiff in the first action died it might be revived and prosecuted to judgment for the benefit of his estate generally, while the second action might also be maintained for the benefit of those immediately dependent upon him. Under such a statute or such a construction it might well be asserted that the two causes of action were entirely separate and the waiver or satisfaction of one would not affect the other. But in McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, 52, 26 Am. Rep. 742, it was decided that the second action was in a sense a substitute for the first — that the first expired beyond revivor whenever the second accrued by the death of the plainiff in consequence of the tort sued upon. This view is in accordance with the interpretation usually put upon similar statutes — that while the two causes of action are not the same, one depends upon the other, and any consideration that would be a bar to the first in the lifetime of the plaintiff would destroy the second.” (p. 12.)
In the case of McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, the distinction therein drawn was between actions -that survive under our statute and actions brought in the first place directly under the statute for death by wrongful act. These statutes are as follows:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.” (R. S. 60-3201.)
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (R. S. 60-3203.)
The effect of these decisions is there cannot be two actions or two recoveries under the sections last above quoted. In some instances there may be either, but certainly not both. It will be observed, however, the last section quoted above applies necessarily to actions by personal representatives, and it applies only in cases of death, so that there could be no suggestion even of any other kind of an action under it than that by the personal representative for and on account of the death. The only alternative in this connection at all is from the fact that the preceding sections of our statutes, entirely disconnected as far as time of enactment is concerned, define causes of action that survive and do not abate by the death of the party.
The other case referred to is Goodyear, Administratrix, v. Railway Co., 114 Kan. 557, 220 Pac. 282, wherein, after a full and careful review of the decisions and the history of the act, the following construction is placed upon the federal employers’ liability act:
“The federal employers’ liability act (35 U. S. Stat., ch. 149, as amended by 36 U. S. Stat., ch. 143) creates a right of action in the injured employee for his suffering and loss resulting from the injury, and also creates a distinct and independent right of action in the personal representative of the deceased employee in the event death results from the injury, for the benefit of certain designated dependents.
“A settlement made by the injured employee after the injury and prior to his death, for his suffering and loss, is not a bar to the action by the personal representative for the benefit of dependents for the death, if it resulted from the injury.” (Syl. Uff 1, 2.)
It is forcefully reasoned therein that if these are two separate and distinct causes of action and the latter does not accrue until the death of the workman, how can he release something which does not accrue in his lifetime and only accrues by reason of his death. In this case and others cited in this connection statements are made as to the rights of the dependents accruing at and after the death of the workman which might be thought to be out of harmony with our statute, above quoted, to the effect that all actions accrue at the date of the accident. We see no inconsistency on that account. The right of action of dependents does accrue at the time of the accident, and everything must relate back to the situation at that time, but dependents have no standing or independent right of action while the workman is living. After his death they have such right of action, which in that sense does accrue after the death of the workman. The two sections of.the federal employers’ liability act on which this construction has been placed are as follows:
“Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or-her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee. . . (35 U. S. Stat., ch. 149, § 1.)
“Any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.” (36 U. S. Stat. ch. 143, § 9.)
The Kansas workmen’s compensation act separates the two causes of action much more distinctly than in the federal employers’ act, and designates them with numbers 2 and 3, and instead of saying “there shall be only one recovery for the same injury,” as in the federal act, it provides for a deduction of what has been paid to the workman for the injury. This section providing for deduction appears to us to be the strongest kind of an argument in favor of there being two separate and distinct causes of action included in this law, and something to supplement the sound reasoning in the case construing the federal act. It is contended that the deductions intended were the installments being paid for the few weeks or months intervening between the accident and the death, but the language is general and without restrictions of limitations except medical and hospital bills.
We think for all the reasons given in the Goodyear case and additional ones-as above pointed out the workmen’s compensation act of Kansas creates a right of action in the injured employee for his suffering and loss resulting from the injury, and also creates-a distinct and separate right of action in the dependents of the workman for their benefit in the event death results from the injury; and a release given by the injured workman after the injury and prior to his death for his suffering and loss is not a bar to the action by'the dependents for their benefit for the death of the workman if it results from the injury. (See 1 Honnold on Workmen’s Compensation, § 78; Crippe’s Case, 216 Mass. 586; Sea Gull Specialty Co. v. Snyder, [Md.] 134 Atl. 133.)
What deduction, if any, should be made under the requirement of the statute above quoted?
“Provided, That any payment under this act on account of any injury from which death shall thereafter result, except such payments as may be made under paragraph 1 of this section, shall be deducted from such sum.”
It will be observed this provision is a part of the section giving the dependent a right of action where death results from the injury. It is suggested that only that amount which should have been paid on the weekly installment plan is intended to be deducted, and not the compromise settlement amount or lump sum, but we fear this would be a strained construction of the words, “any payment under this act.” There does not seem to us to be any ambiguity or uncertainty about the meaning of this provision. The language is plain and simple. It means to deduct from the recovery of the dependents any and all payments already made under this act on account of the injury from which death has resulted except medical and hospital bills, as detailed and enumerated in paragraph 1. In this case $150 was paid as medical and hospital fees, $131.33 was paid in installments prior to the settlement and release, and $3,000 was paid at the time of the settlement, making a total payment to the deceased on account of the injury from which death resulted of $3,131.33. Under the agreed statement of facts the dependents in this case would be entitled to recover $3,800. Deduct therefrom $3,131.33 and there remains a balance of $668.67. The petition alleges that that plaintiff is entitled to one-half of the amount recoverable by dependents, asking for a judgment of $1,900, but it has been held that the distribution between dependents is not controlled by the law of descents and distributions but according to their dependency, in which the defendant employer is not concerned. (McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071.) The facts before this court are not sufficient to enable it to make a proper distribution of this judgment or to determine whether or not the plaintiff should be entitled to all of it.
The judgment of the trial court is reversed and the cause remanded, with directions to render judgment in favor of the plaintiff and against the defendant for $668.67 and to make distribution of such amount between the dependents after such further proceedings as may be necessary to determme the rights of the dependents and their relative degrees of dependency. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appellant, T. W. Douglas, was convicted in the district court of Rawlins county on four counts. The first charged him with advertising in the Herndon Nonpareil, á newspaper published in Rawlins county, and the second with passing out to the public in Herndon, Kan., handbills and cards, representing and indicating thereby that he treated the sick or others afflicted with bodily infirmities. The third and fifth counts charged him with having prescribed and recommended, for fees, drugs and medicine for the cure and relief of bodily infirmity and disease of Maude Carlson in the third count, and Francis Anderson in the fifth count; in all of the counts without having received or recorded a certificate from the board of medical registration and examination of the state of Kansas. The advertisement, mentioned in the first count as exhibit A, is as follows:
“Prof. T. W. Douglas, the great scientist, will be at Herndon, Kan., Friday afternoon, Saturday and Sunday, July 9, 10, 11. All that wish to see him and have a diagnosis should arrange for an appointment. The professor’s headquarters while at Herndon will be at the home of Mrs. Josephine Erickson. All diagnoses are absolutely free.”
The handbills and cards, mentioned in the second count as exhibits B and C, are as follows:
“Free lecture at the opera house, Herndon, Kan., Sunday night, July 11. Prof. T. W. Douglas will deliver his famous lecture, ‘What can be done for the human body.’ This lecture and entertainment is absolutely free to everyone. Don’t miss this opportunity. In all probability you will never again have the opportunity to hear a man of his standing. C. E. Wray, state agent for Kansas.
“Mrs. M. Douglas, Pres. Prof. Tom Douglas, Vice Pres.
Office Hours, 10 a. m. to 10 p. m. daily.
Phone Elmridge 3151-J.
Proprietary Mixtures Syndicate, Inc.
4420 Prospect Ave., Kansas City, Missouri.
FORMULATION FROM GREEN ROOTS AND HERBS.
For Rheumatism, Liver, Stomach, Kidney and Lung Trouble.
Uterine Diseases a Specialty.
Send Birth Date to Ascertain Cause of Complaint.
Prof. Tom Douglas, Demonstrator. Yonga Yoga, Scientist.
Join His Class Now.”
The motions of the appellant to quash the first and second counts and strike out exhibit B were overruled; likewise his demurrer to the evidence. He was acquitted on the fourth count. The statutes of Kansas under which this action is prosecuted are as follows:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.,’ or any other title, in connection with his name, which in any way represents him as engaged in the practice of medicine or surgery, or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever or in any manner whatsoever, so as to indicate that he is authorized to or does practice medicine or surgeiy in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of diseases . . . nor to prohibit gratuitous services. . . .” (R. S. 65-1005.)
“From and after the 1st day of September, 1901, any person who shall practice medicine and surgery in the state, of Kansas without having received and had recorded a certificate under the provisions of this act, or any person violating any of the provisions of this act, shall be deemed guilty of a misdemeanor. . . .” (R. S. 65-1006.)
It is earnestly contended that the first and seicond counts of the information should have been quashed because of the use of the disjunctive “or,” as in the statute, instead of the conjunctive “and,” as it should have been charged. We are inclined to think the use of the word “and” might have been preferable in the charging clause, but the use of the disjunctive, we think, is well within the rule, especially when it follows the statute. It would not be within the rule if it were concerning the alleged doing of something by the defendant, as in the case of State v. Seeger, 65 Kan. 711, 70 Pac. 599, but here it concerns the objects — the ones whom the defendant treated. When that which follows the disjunctive explains the word preceding it or connects synonymous words it is within the well-established rule. (51 L. R. A., n. s., 135; 31 C. J. 707; 3 Words and Phrases, 759.) The word “sick,” as used in the statute and the information, is a comprehensive term including all the ailments and infirmities of body and mind, and all the words that follow the word “or” merely reiterate, emphasize or repeat what was already expressed by the word “sick” — “treat the sick or others afflicted with bodily or mental infirmities.” “Sick” is defined by Webster as “affected with disease; ill; indisposed.”
“Sick. . . . affected with diseases of any kind, ill, indisposed, not in health; weak; ailing; diseased; disordered.” (36 Cyc. 435.)
“By sickness is understood any affection of the body which deprives it temporarily of the power to fulfill its usual functions. It has been held to include insanity.” (3 Bouv. Law. Diet. 3068.)
“The offense of practicing medicine without a license being purely a statutory offense, if the statute so far individuates the crime that the offender has proper notice of the nature of the charge against him, it is sufficient to charge it in the language of the statute or in terms substantially equivalent thereto.” (30 Cyc. 1565.)
It is further urged that the first and second counts are insuf ñcient because they nowhere show the defendant advertised to treat the sick in the state of Kansas. This assignment of error, as well as some others in this case, can be completely disposed of by reference to the second and seventh subdivisions of R. S. 62-1011, which are as follows:
“No indictment or information may be quashed or set aside for any of the following defects:
“Second. For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or information.
“Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
We see no error in refusing to strike out exhibit B because it was coupled with exhibit C, passed out at and during the same time as exhibit B. Both were a part of the second count, and the two together showed quite plainly the intent and purport of the advertising.
Complaint is made about certain evidence of a witness béing stricken out. This might have been error if substantially the same evidence had not been given by this witness both before and after this ruling.
Appellant insists that the state failed to prove he did not have a license or permit to practice medicine in Kansas at the time of the alleged offense, but only proved the condition of the records at the time of the trial, several months later. While some of the answers of the witness Ross are phrased in the present tense, his entire testimony shows he was answering from frequent and recent examinations of the records in his possession, which cover a period of nine years. The state in this particular at least made a prima facie case.
Much is said by the appellant about the advertising being done by another, the service being gratuitous, the selling being of a formulation only, and the formulation being furnished from Missouri and by a corporation of which the appellant was the owner, and assignments of error are directed toward the instructions which refer to the adoption of device, shift or subterfuge for the purpose of covering up the intrinsic character of the transaction. A careful reading of the abstract ¡compels one to conclude that an instruction of this kind was well within the law and particularly appropriate in this case. The accomplishment of the ultimate purpose of the appellant, viz., the collection of the compensation — $270 in the third count and $315 in the fifth — was by very indirect means and by methods evidently intended to evade the requirements of the law. The only direct feature of the entire proceeding was the reception of the checks in the name of the appellant and the ¡currency thereon personally, all other parts and features of the enterprise being circuitous and indirect and undoubtedly so intended and designed. We think there was no error in the giving or refusing of instructions, and there was sufficient evidence to support the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On February 25,1926, Robert Pitt sued H. H. Keenan and T. M. Thomas, doing business as the Thomas. Investment Company, and H. F. G. Wulf to recover damages for the alleged fraudulent obtaining of the possession of 41% shares of Monarch Cement Company stock, owned by Pitt, of the value of $4,180, and giving him in exchange therefor stock of the Vitek Oil Company, alleged to be of little, if any, value. Plaintiff pleaded that Keenan and one Whittam applied to him on April 10, 1923, for permission to sell his cement stock. He first declined to sell the same, but after several visits he consented to assign the stock over to them, upon an understanding that it was to be deposited in a certain bank until the transaction was satisfactorily closed, and that this was not done. He further averred that the cement stock was sold to' Paul Brown and finally transferred to Thomas, who later transferred it to Wulf, the president of the cement company. For this cement stock which he assigned, Pitt accepted 195 shares of Vitek oil stock which he alleged was of little, if any, value. Later, however, the plaintiff disposed of the Vitek stock by exchanging it for stocks in other companies. On January 23, 1924, the plaintiff brought an action against Thomas, Keenan and Whittam, in which he pleaded that the cement stock had been fraudulently obtained by them, substantially as pleaded in the present action, and he asked for a rescission of the contract and the return of his cement stock. On May 5, 1925, he dismissed that action without prejudice and later, on February 25, 1926, the present action was brought to recover damages. The defendant answers, denying generally the allegations of plaintiff, and sets up as a defense the bar of the statute of limitations. It was also alleged that the plaintiff having elected to sue for a rescission of the contract and the restoration of what he had received is bound by that election; that he cannot pursue both remedies, and that having elected to pursue one he cannot thereafter adopt the other, which is an inconsistent and different remedy.
After the introduction of plaintiff’s evidence the defendants filed separate demurrers to plaintiff’s evidence upon the grounds that the alleged cause of action was barred by the statute of limitations, and further that he has no right to maintain the present action because his evidence shows that in a former suit he had made an election of remedies and had adopted and asserted a remedy inconsistent with that pleaded and sought in the present action. It was stated that this .was an action at law for the recovery of damages, while the former action was equitable in its nature, being for a rescission and cancellation of the contract made between the parties, and that the bringing of the first action constituted an election which is a bar to the maintenance of the present action. The court sustained the demurrers and entered judgment for the defendants.
Taking up first the contention that there was an election of remedies, and its effect upon the maintenance of the present action, it appears from the testimony that he brought an action against Thomas, Keenan and Whittam, alleging substantially, as in the present action, that they had fraudulently obtained his stock in exchange for stock in another company. He prayed for its return and stated that he had tendered back the stock given to him, which tender he renewed in his pleading. The action was brought on January 23, 1924, and a trial was begun in December, 1924. Testimony was offered in that action and after a postponement it was taken up again in May, 1925, and upon that day and before the case was concluded plaintiff voluntarily dismissed his action without-prejudice. Later and on February 25, 1926, he brought the present action setting forth substantially the same grounds of fraud as he pleaded in the first, asking for a recovery of the damages sustained by reason of the wrongful and fraudulent action of defendants. It is said that the first action for a rescission of the contract was abandoned because he had disabled himself to return th'e stock which he had accepted in exchange for the cement stock. Manifestly the two remedies are inconsistent with each other. If plaintiff was defrauded in the transaction he had two remedies, one to rescind and cancel the contract of sale and exchange on the theory that the title to the stock had not passed but still remained in himself, and that upon a restoration of the stock which he had received in the exchange he was entitled to the recovery of the cement stock. The other was an action at law on the theory that the title had passed by the contract of sale, and that he was entitled to recover damages sustained by reason of the alleged fraud practiced by the defendants in obtaining title to the cement stock. He chose the former remedy and is conclusively bound by that election.
“It has been, consistently held, throughout a long line of decisions in this state, that where a party having the right to choose one of two inconsistent remedies, deliberately elects to follow one of them, with knowledge or the means of knowledge of the facts, he is effectually barred from thereafter making a new election and pursuing the other remedy.” (Ireland v. Waymire, 107 Kan. 384, 386, 191 Pac. 304, and cases therein cited.)
In a similar action where there had been a purchase of corporate stock alleged to have been induced by misrepresentation and fraud, the plaintiff in effect asked for a rescission, the cancellation of the contract, and a return of the securities and money paid upon the purchase. Later he sought a recovery for damages. It was held that the plaintiff could affirm the contract and ask for damages, to be ascertained by a jury, or he could disaffirm and pray for equitable relief, but he could not do both, and having elected one remedy he was barred from resorting to the other inconsistent remedy. The reasons for the rule were stated in the opinion.
“The decisions of this court establishing and applying the following principles are numerous, and have been collated so many times it is not necessary to do so again: A person fraudulently induced to buy and pay for property delivered to him has two remedies, one legal and one equitable. He may affirm the contract and sue for damages, or he may disaffirm and sue for rescission. If he affirm, he keeps the property, the seller keeps the consideration paid, and the buyer recovers damages for the difference in value between what he received and what he should have received. If he disaffirm, he seeks restoration of.the status existing when the sale was made. Affirmance and disaffirmance are contradictory of each other. The sale cannot stand and at the same time be set aside. Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes resort to the other, and in choosing a remedy it is the first decisive step which counts.” (Beneke v. Bankers Mortgage Co., 119 Kan. 105, 107, 237 Pac. 932.)
In a later case involving a sale of an interest in an oil' lease in which the plaintiff charged that the sale was induced by fraudulent representations, he first pleaded an action for a rescission. Later in' an amendment he asked for damages, which were awarded. It was contended upon the appeal that the plaintiff having elected to 'rescind the sale and sue for cancellation and restoration was thereafter estopped to elect to affirm the sale by an amendment to the petition, and that he could not convert the action into one for damages. In the course of the opinion it was said:
“It is manifest, that on the showing made by the well just after it was brought in, plaintiff concluded he would keep his interest. Therefore he repudiated the sale, and took the necessary steps to divest defendants of their voidable title. Twenty months later he changed his mind, and concluded he did not want the interest. Therefore he undertook to affirm the sale, confirm title in defendants, and recover damages based on the estimated value of the well at the time of sale. Having discovered that he had been defrauded, plaintiff was privileged to affirm or to disaffirm the sale, but he could not do both, and he could not do first one and then the other. He elected to keep title, and commenced his action accordingly. That exhausted his privilege.” (Hamilton v. McGinins, 119 Kan. 719, 721, 241 Pac. 690. See, also, Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429.)
It is clear, therefore, that the election made by plaintiff in his former action conclusively bars him from maintaining the present action, at least as to all the parties named as defendants in the first action. Wulf, a defendant in the present action, was not a party to the former one. However, he was an assignee of the defendant, Thomas, and the title of Thomas to the stock has been confirmed as we have seen by the action of plaintiff, and the title acquired by the transfer to him is hardly open to question. Besides, it may be said there was no showing nor an attempt to show that Wulf had any part in the fraud alleged against the other defendants.
The defense of the statute of limitations asserted by the defendants appears to be another bar to the maintenance of this action. It was not brought until more than two years, in fact nearly three years, after the transaction in question. Within a few weeks after the transaction plaintiff learned that the cement stock had not been deposited in a bank, as he expected, and soon afterwards learned that it had been transferred. He accepted a part of the Vitek stock, claimed to be worthless, in May, 1923, and the balance of it about November 23,1923. Between that time and the date the first action was brought, January 23, 1924, it must be assumed that he learned of the worthlessness of the Vitek stock and of the wrong that had been perpetrated upon him. On May 5, 1925, when he dismissed his first action, considerable of the original period of limitation remained in which an action might have been instituted. On this situation it has been held that the section relied on to toll the time is not applicable. In Jackson v. Oil & Gas Co., 115 Kan. 386, 222 Pac. 1114, it was held: . '
“Under section 22 of the code (R. S. 60-311), the right to bring the new action is given only in cases where the time limited for bringing such an action has expired during the pendency of the suit which failed otherwise than on the merits, and if, at the time of such failure, there remains any portion of the time limited for bringing such action, the provisions of this section do not apply.”
The plaintiff was effectually barred from maintaining the action by his former election of an inconsistent remedy, and second, his action was also barred by the statute of limitations.
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The opinion of the court was delivered by
Harvey, J.:
Florence Koontz was -found guilty of the larceny of property belonging to her husband. The evidence tended to show that appellant and A. A. Koontz were married in August, 1925; that they lived together in Kansas City, about half the time between that date and September 20, 1926; that at supper on that date appellant gave her husband sleeping powders in his coffee. He became drowsy, retired early and slept soundly. That night appellant left and took with her a Dodge touring car, her husband’s trunk with practically all of his clothing, two revolvers, his watch, a diamond ring, and $66 in cash from his pocket. She apparently hid out over in Kansas City, Mo. In December of that year Mr. Koontz saw the car on the street in Kansas City, Mo., being driven by one H. A. Pauley, who said it belonged to appellant and that he was driving it for her. Pauley accompanied the officers to her apartment. It was there found he was carrying Mr. Koontz’s watch and wearing some of his clothes, all of which had been given to him by appellant. Appellant had given the revolvers to someone who helped her get the stuff away and had pawned the diamond ring. She was charged with the larceny of all the property taken. Appellant contended the ring had been given to her by her husband and the automobile had been paid for in part since their marriage. The taking of the property and the disposition made of it was not denied. Among others the court gave the following instructions:
“No. 8. If you find from the evidence that all or any part of the property alleged to have been taken from the husband, Archie Koontz, by the defendant, Florence Koontz, was derived from their joint efforts and earnings, then you are instructed that the taking of such property, as you find from the evidence was derived from the joint efforts and earnings of both of the defendant and Archie Koontz, by Florence Koontz, would not constitute larceny.”
Four forms of verdict were furnished the jury: One, if the jury found her guilty of the larceny of the automobile, another if guilty of grand larceny, another if guilty of petty larceny, and the fourth if not guilty. Appellant was found guilty of petty larceny. It is evident that the jury did not find appellant guilty of the larceny of the automobile, nor the diamond, nor the money taken, but did find her guilty of the larceny of her husband’s watch, wearing apparel and personal effects; and as to these they were kind enough to appellant to place a low value upon them. She appealed, and contends that a married woman, by reason of her marriage relation, has' such an interest in the property of her husband that she cannot commit the crime of larceny concerning it as that offense is defined by our statutes (R. S. 21-533, 21-535); that such property is not “the property of another.” This contention cannot be sustained.
At common law crimes against the property of another cannot be committed by husband or wife against the property of the other owing to the unity of husband and wife and the rights of the husband in the property of the wife. (See, generally, 30 C. J. 715; as to arson, 5 C. J. 554; embezzlement, 20 C. J. 416; larceny, 36 C. J. 783.) But in this country, generally speaking, the respective rights of husband and wife in personal property are governed by the law of the domicile (30 C. J. 509). The common law rule above mentioned has no application in this state for two reasons: First, we have no common-law crimes in this state (State v. Young, 55 Kan. 349, 40 Pac. 659); all crimes are statutory. Second, by our constitution (art. 15, § 6) and statutes (R. S. 23-201 et seq.) the common law rule of the unity of property rights of husband and wife has been abrogated. The separate ownership of property by a husband, or a wife, is clearly recognized. (Going v. Orns, 8 Kan. 85; Knaggs v. Mastin, 9 Kan. 532; Harrington v. Lowe, 73 Kan. 1, 19, 84 Pac. 570; Brecheisen v. ‘Clark, 103 Kan. 662, 176 Pac. 137; Putnam v. Putnam, 104 Kan. 47, 52, 177 Pac. 838.) The husband, or wife, may sue the other respecting their property rights. (Greer v. Greer, 24 Kan. 101; Green v. Green, 34 Kan. 740, 10 Pac. 156.) The marriage relation gives the wife no authority to sell the personal property of her husband (Wheeler & Wilson Manuf'g Co. v. Morgan, 29 Kan. 519), and we see no reason why that relation should confer upon her the right to steal his property.
Decisions in point from other states are neither numerous nor especially helpful. Beasley v. The State, 138 Ind. 552, and Hunt v. State, 72 Ark. 241, accord with the views here reached, while State of Ohio v. Phillips, 85 Ohio St. 317, although perhaps limited to the class of property there involved, reaches a contrary view. Some authorities are collected in.the note, 29 L. R. A., n. s., 830.
As related to the crime of arson this court, in State v. Shaw, 79 Kan. 396, 100 Pac. 78, held:
“Under the laws of this state the legal identity of husband and wife does not prevent a husband who bums his wife’s house from being guilty of arson.”
The same principle applies to the case here. Its application requires us to hold that a woman who steals the separate property of her husband has stolen the “property of another” within the meaning of our statutes. (R. S. 21-533, 21-535.)
Appellant complains of the refusal to give instructions requested and of instructions given, especially No. 8. The argument here involves the question already discussed. There is no error in the instructions given of which appellant can complain.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the receiver of the Guarantee Mutual Hail Insurance Association (cooperative) against some 756 members of the association, to recover premiums for insurance. Some defendants were indebted upon notes given by them for premiums, others upon written promises to pay contained in their applications for insurance and accounts growing out of such applications. The áction was filed in Shawnee county, where only a few of the defendants reside. Service upon defendants in other counties was followed by motions to quash -the service on grounds of no jurisdiction. The motions to quash were sustained, and plaintiff appeals.
The plaintiff contends that the district court of Shawnee county properly acquired jurisdiction by proceedings to wind up and dissolve the association for the benefit of general creditors, and that the action of the receiver against the various defendants was a necessary step in such procedure; that otherwise the association’s assets cannot be collected; that the action is one in equity; that it will lessen litigation and avoid a multiplicity of suits; that each defendant is interested in the outcome of the proceedings as against each other defendant; that the court cannot render judgment against any defendant and make an order such as is required by the statute, as to the amount of the execution to be levied, unless the rights of' all defendants be considered in one action at one time and one general order made effective as to all parties.
The defendants contend that to permit such an action to be maintained would abrogate the letter and spirit of the statute, which provides that every (other) action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned (R. S. 60-509); that each defendant is entitled to rights different from other defendants, which must be recognized, and should have the right to defend his own suit free from the embarrassing presence of other defendants with whom he has no joint liability; that plaintiff, as receiver, is entitled to no greater rights than those accorded to an individual.
Whether or not the defendants may be proceeded against in the one action depends largely on the question of their joint or several liability. The petition shows that the defendants were not jointly and severally liable. Each defendant was sued upon a separate and individual obligation. The receiver asked judgment against the defendants in various amounts set opposite their names. Judgment was not prayed jointly and severally against them. The amount of judgment prayed for against the defendants who had not executed promissory notes, varied according to the amount of the policy and to the particular zone in which the defendant lived, to whom an insurance policy had been issued. The policy shows that the state was divided into five zones; that a different rate of insurance applied in each. The amount of premium due on the various policies depended'upon the number of acres of crop covered by each, the amount of insurance per acre so written upon the crop, and upon the zone in which this particular crop was located. The action is not unlike one wherein the receiver of a corporation sues all the stockholders in one action to recover the stockholder’s liability.
Abbey v. Dry Goods Co., 44 Kan. 415, 24 Pac. 426, was an action to recover various amounts from the stockholders of the Republic County Cooperative Association on their liability as such. In the opinion the court said:
“Can a suit be maintained under this liability, created by statute, by one creditor against more than one stockholder, where the liability is necessarily for different sums, as in this case twelve of the thirty-two defendants are liable for five dollars each; five for ten dollars each; three for fifteen dollars each, and others for twenty dollars each? Reason alone answers the question in the negative, from the very nature of the difficulties we would encounter to hold otherwise, in an action for a money judgment alone. The rule, however, is well settled by the great weight of authorities, that such an action must be maintained against each stockholder alone. The supreme court of Missouri has had occasion to consider a statute similar to our own, and says that in suits of the above description, whether brought in law or equity, will not lie against defendants jointly, but must be begun against each one severally; and under the law, the stockholder thus compelled to pay must resort to his remedy for contribution. . . .
“The rule that stockholders of a corporation cannot be joined as defendants, necessarily rests upon the ground that the liability is for different sums, and each stockholder might have a distinct and separate defense. Where the liability of stockholders is confined to the extent or amount of their stock, or is in proportion to their stock, the liability, being unequal and limited, is several.” (pp. 418, 419.)
In Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905, it was held that action could not be maintained jointly against the defendants where the defendants were not jointly liable. In Tompkins v. Craig, 93 Fed. 885, it was held that a receiver could not maintain a suit in equity against a number of stockholders to recover on assessments, as the liability was several and a separate action would have to be brought against each. It was held:
“A receiver of an insolvent bank cannot maintain a suit in equity in a federal court against a number of stockholders to recover assessments levied under the state statute, as the liability of the defendants is several, arising on their contracts of subscription, each of which is a separate obligation, and is a legal and not an equitable liability.”
It was held in Bank of Poughkeepsie v. Ibbotson, (N. Y.) 24 Wend. 472, that the liability of stockholders was several and not joint, that a joint action could not be maintained, as the measure of recovery was wholly different against each, depending upon the amount of stock held, and that no joint judgment could be rendered. (See, also, Perry et al. v. Turner et al., 55 Mo. 418; National Bank v. Magnuson, 57 Kan. 573, 47 Pac. 518; Pierce v. Security Co., 60 Kan. 164, 55 Pac. 853; Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331; Hinshaw v. Austin, 64 Kan. 460, 67 Pac. 882; Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655.)
Our statute provides that:
“Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” (R. S. 60-411.)
Another provision reads:
“Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned.” (R. S. 60-509.)
Necessarily, therefore, in order to proceed against a defendant in a county where he does not reside or cannot be summoned, he must come under one of the classes specified in 60-411. That is to say, in order to make defendants residing in Kingman, Kiowa or Harvey counties, and served in such counties, proper parties to this action it is necessary that they be necessary parties to a complete determination or settlement of the question involved in the action against defendants in Shawnee county, or it must be disclosed that the defendants in Kingman, Kiowa and Harvey counties have or claim an interest in the notes involved in the action against the defendants residing in Shawnee county.
The association was organized under the provisions of chapter 206 of the Laws of 1913 (R. S. 40-601 et seq.) providing for the formation of mutual hail insurance companies. One section of the statute, among other things, provides that:
“If any member . . . neglect or refuse to pay the sum assessed upon him as his portion of any loss as aforesaid, in such case the directors may sue for and recover the whole amount of his deposit note or notes, with cost of suit; but execution shall only issue for assessments and costs as they accrue. . . .” (R. S. 40-607.)
So it appears that the amount of the recovery shall be “the whole amount of his deposit note or notes, with cost of suit.” The amount of recovery is not determined in any way by the amount of the liability of any other defendant or stockholder. This section of the statute also provides that the total amount of the liability of the member shall never be more than “the whole amount of his deposit note.”
The plaintiff relies largely on McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A., n. s., 781, and Public Utilities Com. v. London, 249 U. S. 236, 63 L. Ed. 577. The McCall case must be considered in connection with the case of Burke v. Scheer, 89 Neb. 80, 130 N. W. 962, 33 L. R. A., n. s., 1057, which was distinguished by the court in deciding the McCall case. The latter was an action brought by the receiver of the Hog Raiser’s Mutual Insurance Company against a large number of its members, to recover an assessment against each. The statute under which this insurance company was organized was different from the statute controlling in the Burke-Scheer case. The statute supporting the McCall case provided that “all persons who take insurance in a company become and continue members during the period their insurance is in force, and no longer, and it is provided that they shall sign an application obligating themselves to pay all assessments made for loss and expenses while they continue members.” Also, “that any member may withdraw by giving notice of the surrender of his policy, and pay his or her share of all unpaid claims or liability of such company for losses or expenses accruing while a member.” From which it is apparent that stockholders were jointly liable for all unpaid claims, for losses or expenses while they were members. The court in commenting upon the Burke-Scheer case said, “but that case is not in point. The insurance company involved in the Scheer case was organized under a different statute, which limits the liability of the members to the amount of the obligation expressed in the application which provided that members could not be compelled to pay more.” The provision of our own statute under which the present association was organized is that “no member shall ever be liable to such company or to any other person for more than the whole amount of his deposit note.” That is to say, the statute on which the McCall-Bowen case was decided did not limit the liability of the stockholders, but they were jointly liable for all losses of the company. Our statute under consideration limits the liability of the policyholder to the amount of his note. He is not jointly liable with any other policyholder.
An analysis of the Landon case and other cases cited by plaintiff would serve no useful purpose. They are not applicable to the facts here.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the nature of a creditor’s bill to subject certain real property to the payment of debts. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff. Defendants have appealed.
The story of the controversy is told in the findings of the court as follows:
“This action was filed June 11, 1925, seeking to have Olive G. Fruits adjudged the trustee for the benefit of the plaintiff and other creditors, of the following-described real estate: (240 acres of farm land described.) The action was first instituted against Olive G. Fruits, alone. Olive G. Fruits and J. H. Fruits are husband and wife. In her original answer Olive G. Fruits claimed the land as her own and alleged that $10,000 of her own money had been invested in property and that this ultimately went into this particular land. During the trial of the case J. H. Fruits was permitted to become party defendant to the action, and both defendants to file an amended answer in which it was alleged that the northwest quarter of the property in question and upon which were located the house and buildings, was the homestead of the defendants herein.
“1. April 14, 1923, J. H. Fruits signed a guarantee in behalf of the Welshimer Coffee Company, of Wichita, Kan., to the Union National Bank of Wichita, Kan., wherein he guaranteed ‘to said bank payment at maturity of all notes, checks, drafts, or other obligations, the proceeds of which have been credited to the account of the Welshimer Coffee Company in the Union National Bank, and any and all items on which the said bank extends cash or credit to the said Welshimer Coffee Company’; and agreed ‘to reimburse the Union National Bank for any loss it may sustain through the extension of credit or funds to the Welshimer Coffee Company.’ December 31, 1923, the Union National Bank brought an action in the district court of Sedgwick county, Kansas, against J. H. Fruits and others, upon this obligation,, and on the 4th day of March, 1925, obtained a judgment against J. H. Fruits for the sum of $1,438.22, with interest at 8 per cent per annum, from November 23, 1923. No appeal was taken. Said judgment is duly docketed in the records of the clerk of the district court of Sedgwick county, Kansas.
“2. On the 10th day of June, 1925, execution was duly issued upon this judgment against the property of J. H. Fruits, and the execution was returned June 11, 1925, ‘nulla bona’; and the judgment remains unsatisfied.
“3. On and prior to April 14, 1923, J. H. Fruits was the husband of Olive G. Fruits and head of the family living on about ten acres of land located on North Hydraulic avenue, city of Wichita, Sedgwick county, Kansas, and is still her husband and head of the family. On or about the second day of October, 1923, they exchanged the city, property mentioned for the property in question, as above described. This property constitutes all of the real estate owned or claimed by J. H. Fruits or Olive G. Fruits. At the time of the exchange the farm property had a mortgage upon it in the sum of twelve thousand ($12,000) dollars. Olive G. Fruits did not assume the payment of said mortgage, but took title subject thereto. Since that time about $2,000 has been paid upon the principal of the mortgage. At the time of the exchange the defendants did not have any intention to move upon the land in question and occupy the same as a homestead. In March, 1924, they leased a farm of twelve acres on Meridian highway, about eight miles from Wichita, for a period of one year, and lived upon the same for about that length of time.
“4. At the time of the exchange of properties the farm land herein in question was under lease to one Forward, who was in possession thereof and continued in possession until the summer of 1924. Although the lease did not expire until August 1, Forward left the land a short time before. In August, September and October, 1924, the sons of the defendants herein, at the direction of the defendants, prepared a portion of the land and put in a wheat crop. T'°'' defendants, with their family, moved upon the farm property in question curing the month of March, 1925, and have lived there continuously since that time.
“5. At the time of the exchange of the property mentioned, the title to the farm property was taken in the name of Olive G. Fruits, who at all times since has had the title in her name. The land is worth approximately $75 to $80 per acre. The city property was the property of J. H. Fruits. No separate monej’’ or estate of Olive G. Fruits was invested in or a part of said city property. At the time of the exchange, and previous thereto, J. H. Fruits was indebted to the Union National Bank of Wichita, Kan., in the sum of $1,750, of which amount there is still due the sum of $1,438.22, with interest at 8 peícent per annum, from November 23, 1923.
“6. The conveyance of the farm property herein described was made to Olive G. Fruits by her husband, J. H. Fruits, with the intent to place the property outside the reach of his creditors and with the intent to cheat and defraud the plaintiff herein and other creditors and prevent, hinder and delay the collection of the amounts due them.
“7. In 1925 the landlord’s share of the wheat produced upon this land amounted to approximately $748. In 1926 the landlord’s share amounted to approximately $897.60.”
From these facts the court concluded, as a matter of law, that Olive G. Fruits is a trustee of the farm land described in favor of the plaintiff; that plaintiff was entitled to an accounting of the rents and profits, and that if these should be insufficient to pay the claim of plaintiff, the land should be sold for that purpose.
Defendants filed no motion for a new trial. Their principal complaint in this court is that the findings of fact are not supported by the evidence. They are not entitled to be heard upon that question. In the absence of a motion for a new trial, there can be no reexamination of issues of fact. (R. S. 60-3001; Brubaker v. Brubaker, 74 Kan. 220, 86 Pac. 455; Milling Co. v. Schreiber, 102 Kan. 172, 169 Pac. 222; Kinear v. Guthrie, 113 Kan. 692, 216 Pac. 280; State, ex rel., v. Telephone Co., 115 Kan. 236, 264-269, 223 Pac. 771; Railroad B., L. & Savings Ass’n v. Watkins, 119 Kan. 409, 239 Pac. 755.) An examination of the record, however, discloses that the findings of fact are supported by competent, substantial evidence.
On motion of plaintiff the court impounded the rents of the farm pending the further order of the court, the evident purpose being to apply the same upon the claim of plaintiff. When the appeal was taken defendants gave a supersedeas bond, and the court, on motion of defendants, in view of the supersedeas bond having been given, ordered that the impounded money be delivered to defendants. That order was stayed by a former order of this court. Plaintiff has appealed from the order of the court directing the return of the money to the defendants. Since that order was stayed and the money is still impounded and may now be applied to the payment of plaintiff’s claim, the question of whether the trial court was correct in making the order appealed from by plaintiff is no longer material.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
E. C. Crow has appealed from a conviction on nine counts of an information charging him with embezzling, abstracting and willfully misapplying moneys, funds, securities and credits of the First State Bank of Cunningham, of which bank he was cashier, director and managing officer, in violation of R. S. 9-140. He contends (1) that the evidence was insufficient to sustain the verdict on the several counts, (2) that the court erred in refusing to give proper instructions requested, and in giving improper instructions, and (3) that improper evidence prejudicial to him was erroneously admitted.
A brief general statement is as follows: In the town of Cunningham there were two state banks. One of them, the Cunningham State Bank, failed in 1922, and in July, 1923, the other one, the Farmers State Bank, failed. E. L. Allen, who, either as receiver or special bank commissioner was in charge of several failed banks, was by the bank commissioner, Carl J. Peterson, appointed special deputy bank commissioner in charge of the Farmers State Bank. The appellant was appointed special deputy bank commissioner to assist Allen in the affairs of the Farmers State Bank, and together they handled the business until in December of that year, when he was appointed receiver, and thereafter had general charge of the assets of the bank and proceeded to liquidate it. Appellant, and others, organized a new bank. In September, 1923, the First State Bank of Cunningham was chartered and soon thereafter began business, with appellant as its cashier and chief managing officer. He continued, however, as receiver of the Farmers State Bank, endeavoring, among other things, to collect its notes. In October, 1924, he had the notes of the Farmers State Bank, which up to that time he had been unable to collect, appraised by three residents of Cunningham, the appellant giving the appraisers such information as he had concerning each of the notes. Among them were the Ed and Joe Conley notes aggregating $8,000, appraised at $1,000; the Harry Renner notes aggregating $2,632, appraised at $400, and many other notes appraised at correspondingly nominal sums, or as being worthless. In November, 1924, appellant procured the bank commissioner to apply to the district court for authority to sell the remaining assets of the bank. Appellant verified the application, stating the representations therein were true and that the order should be granted. Among other things the application stated:
“The character of the assets remaining in the hands of the receiver is generally as follows: Numerous customers’ notes, the makers and indorsers of which are either insolvent or have moved to parts unknown, or have died or whose property is exempt or so heavily encumbered that same cannot be subjected to the satisfaction of the said bank, and said notes were either wholly unsecured or the security, where any formerly existed, has been exhausted or has depreciated or otherwise become of little or no value.”
Appellant procured an order to sell the remaining assets of the Farmers State Bank, the sale to be conducted by special receivers appointed for that purpose. Appellant obtained permission to become a purchaser at such sale. He associated with him H. J. Adams, who did the bidding for him, and at the sale bought notes, including the Ed and Joe Conley notes, of the aggregate face value of about $165,000 for $6,440. He also bought the Harry Renner notes for $400. Within sixty days after his purchase of these notes he got in touch with the makers of a number of them, had the notes renewed for substantially the original amounts, turned them into the First State Bank and got the money on them, which money he applied to his own use. In this way he got from the bank more than $50,000. Two counts in the information, the first and the third, pertain to two of the notes above mentioned. The Ed and Joe Conley notes above mentioned formed the basis of the first count in the information. Appellant had them renewed for $8,000. For some reason, not disclosed, a credit of $1,500 was indorsed on one of them. They were placed in the bank and a credit for $6,500 was entered in the name of J. M. McDonald. This was perhaps a fictitious name; no one by that name was known in the vicinity. At any rate, the amount of this credit was traced to appellant. On this count it was charged that the notes were of little or no value, that appellant knew them to be so. The third count makes a similar charge as to the Harry Renner notes, on which appellant obtained $2,000 from the bank. Evidence as to the other notes above mentioned was introduced for the purpose of showing appellant’s wrongful intent in the matters charged in these counts. '
Early in 1925 the First State Bank was needing money. Crow did not like his bank statements to show large rediscounts. T. J. Long, vice president of the bank, and Crow — who as Long & Crow had been transacting some business as partners — took the bank’s notes to the amount of $25,000, used them as collateral to their own notes, and thereby borrowed $25,000 at one of the banks at Kansas City, which money they turned into the First State Bank in payment of the notes taken from the bank by them. The notes they took were charged off the books of the First State Bank, as having been sold to Long & Crow, and the cash received was credited. So far this transaction was not subject to criticism — the bank was fully paid for its notes. A few months later Long & Crow, having collected nearly $7,800 of the notes they had put up as security at Kansas City, desired to make a payment of $10,000 on their notes there. Crow had the First State Bank make a loan to Long & Crow of $2,362.84, which sum was placed to their credit in the bank and used by them in making their Kansas City payment. The note given by Long & Crow for this loan was not shown on the record of the bank’s bills receivable, nor placed in the note case. Only a “memorandum note” or “credit slip” was made of this item, and it later disappeared. A bank examiner found the note case $2,225 short and reqüired that the note case be put in balance. Crow placed in the note case a note for $1,226.22, a note for $500, and credited with an “interest error” of $468.07, which brought it almost to balance. These two notes were worthless; where they came from seems á mystery; they had not previously been the property of the bank. In the second count Crow was charged with having embezzled, abstracted and willfully misapplied the Long <fc Crow note representing the loan to them of $2,362.84.
The fifth count deals with the Gatlin note, representing a difference due Crow in a trade of some Colorado land to Gatlin for property" in Hutchinson. The note was due in three years, bore 6% per cent interest, was made direct to the First State Bank and the amount of it, $900, credited to Crow. It was secured by a trust deed on the land traded Gatlin, but it developed that Crow had no valuable interest in the land he traded to Gatlin, the trust deed was of iio value as security, and the note was worthless.
The sixth count relates to a Montgomery note of $1,400, made to the bank and the amount credited to Crow. Crow procured this in some, kind of a speculation in oil leases engaged in by him and Montgomery.
The eighth and ninth counts relate to the notes of V. E. and W. S. Gibbons. They were stockholders in the First State Bank when it was organized, having given notes to the bank for the stock issued to them. Eventually most of this stock was transferred to Crow, and the Gibbons notes to the bank were greatly reduced. But Gibbons and Crow appeared to have had much business together. In September, 1924, they settled, and Gibbons was indebted to Crow nearly $4,500. Crow took Y. E. Gibbons’ note for $2,220.73 and W. S. Gibbons’ note for $2,250. He turned these notes to the bank and took credit for them. Gibbons and Crow together owned an interest in some Gray county land, the title of which was in the name of another. Gibbons’ interest in this land was supposed to secure these notes, but when the land was disposed of some months later it developed either that Gibbons had no substantial interest in the land, or Crow got hold of it and used it for some purpose other than paying the note to the bank.
The tenth count relates to the note of B. D. Crow, wife of appellant. On June 29, 1925, B. D. Crow’s demand note for $2,500 was taken into the bank and the full amount credited to appellant. There is much in the record about B. D. Crow’s notes, but it need not all be stated.
As to each of the notes above mentioned it was charged in substance that the notes were of little or no value when placed in the First State Bank by Crow, that this fact was known to him, and that by so doing Crow embezzled, abstracted and willfully misapplied the money, funds and credits of the bank.
The eleventh count relates to the bank building of the old Cunningham State Bank bought by Crow from the receiver of that bank for $3,000, and on the same day, or within a few days, Crow placed it among the assets of the First State Bank for $7,500, taking credit to himself for that sum, out of which he paid the purchase price, leaving a personal profit to him of $4,500. In doing this he acted for the bank in purchasing the property and for himself in selling it.
Turning to the legal questions raised. It is first contended, and this contention is made as to each of the counts upon which a conviction was had, that the evidence is insufficient to sustain the verdict. Appellant makes a detailed analysis of the evidence relating to each count, and points out what seems to him a fatal hiatus in the evidence essential to a conviction. As to the counts relating to notes placed in the bank by appellant, it is argued that the evidence did not show the notes to be of little or no value, as alleged, at the time they were taken into the bank, and if the evidence can be said to show that, it is argued that the evidence did not show that appellant knew such was the case. The evidence is much too lengthy to attempt to state and analyze it in an opinion. We have examined it carefully. Appellant’s point is not well taken. The evidence conclusively shows, not only that the notes in question were worthless, or practically so when taken into the bank, but that appellant knew that fact as to each of them, and that his purpose and intent' in each instance was to enrich himself at the expense of the bank, its stockholders and depositors. Counsel cite cases that the evidence must be “legally sufficient.” That is correct. No one should be convicted on suspicion. To sustain a conviction there should be competent substantial evidence to support the essential elements of the offense charged. But there is no lack of that here.
As to the second count it is argued that there is no evidence that a note was given for the loan of $2,362.84 to Long & Crow, or, if given, there is no evidence that Crow was responsible for its being missing. It was further argued that the entire transaction referred to in this count was for the benefit of the bank; that the bank had never parted with the notes which Long & Crow took and put up as security at Kansas City. The jury was justified in finding that a note was made — Crow himself at one time so testified; also was justified in concluding that Crow abstracted it from the bank, since he was the chief managing officer of the bank, having access to the notes, and being at least one of the persons interested in removing the evidence of his obligation to the bank. The jury also was justified in concluding that when Long and Crow took the notes from the bank the same became their property and no longer belonged to the bank. They were charged off the books of the bank as though sold for cash, and none of them ever returned to it.
As to the eleventh count it is argued that no fraud was committed on the First State Bank by Crow selling to it the bank building of the old Cunningham State Bank, for the reason that the building was worth the money. There was evidence before the jury as to the value of the bank building. The jury passed on that question. Even if it were worth the money, the transaction cannot be said to be free from fraud.
The instructions are complained of. Because of the number of counts charged, .the nature of the offenses and the volume of evidence, the instructions were necessarily numerous — there were sixty-five in all — and some of them quite lengthy. Counsel for appellant has combed these with diligence and picked out here and there sentences or phrases which he criticizes severely. We have carefully considered all the points urged and arguments made. There is nothing seriously wrong with the instructions given. In such a case it is not possible to state everything in one sentence or in one instruction. A few, not many, of the phrases standing alone are slightly inaccurate, but considered as a whole, as they must be, they fairly presented the case to the jury and fully protected all the legal rights of the accused.
Appellant complains that the court admitted in evidence the records of the sale of the remaining assets of the Farmers State Bank. These were competent to show Crow’s knowledge of those notes and their value, also to show ownership of the notes in Crow. Neither was it error to receive, the testimony of the witnesses who appraised those notes at Crow’s request, the elements considered by them in making the appraisement, the information furnished them as to each note by Crow, that there had been no material change in the value of the notes between the time they were appraised and the dates many of them were taken.into the bank by Crow; nor was it error to permit these witnesses to refer to a carbon duplicate of the appraisement to refresh their recollection as to the amount of the appraisement of various notes. Complaint is made that the witness Long was not required to answer certain questions asked on cross-examination for the purpose of showing his prejudice toward appellant. The refusal to answer the specific questions, for the reason given, showed as much prejudice against appellant as any answer the witness could have made. Besides, perhaps the refusal was within the constitutional rights of the witness. At any rate, the ruling was within the sound discretion of the trial court. Other complaints as to the introduction of evidence have no substantial merit.
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The opinion of the court was delivered by
Johnston, C. J.:
Emma Crouch brought this action against the Missouri Pacific Railroad Company to recover for injuries alleged to have been sustained by her husband, Chas. Crouch, while in the employ of the defendant, which injuries were caused by defendant’s negligence and resulted in his death. In its answer the defendant denied that the injuries were the result of its negligence, alleged that they were due to the negligence of Chas. Crouch himself, and that the risk and hazards of handling a defective appliance at the time of the injury were assumed by him. A release and satisfaction of the damages resulting from the injuries was pleaded by defendant. At the close of plaintiff’s evidence a demurrer to it was sustained by the court, and from that decision plaintiff appeals.
Chas. Crouch was employed b^ the defendant at Coffeyville, to clean coaches, and a part of his duty was to put water into them. The method of putting water in coaches was by attaching a long hose to a hydrant, carrying the end of the hose to the top of the coaches, pulling it along and putting water through openings left there for that purpose. The evidence tends to show that on the day the accident occurred coaches were spotted near the hydrant to which the hose was attached. Crouch placed a ladder at the side of a coach and climbed to the top of it, carrying the long hose loaded full of water with him, the water being shut off at the nozzle and not at the hydrant. On reaching the top of the coaches Crouch pulled the hose along from one car to another, and it was necessary to use considerable force, and while doing so the hose broke or pulled apart where it had been spliced, causing him to lose his balance and fall on his head and shoulders upon a brick pavement at the side of the coaches, thereby suffering severe injuries which, it is said, finally caused his death.
One witness testified the hose was 175 feet long, that the break was where there was a joint or splice. The repair had been made by placing a metal pipe inside of the rubber, bringing the ends of the hose together, placing clamps or bands around each side of the break or joint. He testified further that the break appeared as if one part had slipped off the pipe and was in the part of the hose that was down upon the ground; that the piece broken off was about 15 to 20 feet long.
Another witness said the hose was larger than garden hose and was about 100 feet long. There was some conflict in the testimony as to the size and length of the hose. Testimony was given to the effect that those who handled the hose did not repair or inspect it; that when it became broken or defective the hose was sent to the shop, where it was repaired by an employee named Zimmerman, who had been assigned to that duty, and when the work was done and the hose tested it was returned for use again. It appears that hose was occasionally cut by cars passing over it, and it was also shown that in no event was it the duty of car cleaners either to inspect or repair hose.
.In support of the ruling on the demurrer it is insisted by defendant that the appliance was a simple one, substantially similar to a garden hose, with which everyone is familiar, and that the risk and hazard of a defect or break in the hose was one assumed by the- employee handling it. It is a recognized rule of law that it is the duty of the master to use ordinary care in furnishing reasonably safe tools and appliances to his servant with which to perform his work. The master is required not only to exercise that degree of care in furnishing the appliances originally, but it is his duty to use ordinary care to make repairs and keep the appliances in a reasonably safe condition. While the appliance used was simple in construction, it was one furnished by the railroad company and one which it undertook to keep in repair. If the duty of inspection and keeping the appliance in condition had been placed upon Crouch, or if the danger or defect was so open and obvious that he must have known of it, a recovery of damages might be barred. Here, however, the duty to repair the hose and to keep it in safe condition had been delegated to another employee, for whose negligence the company was responsible. The appliance was defective or unsafe or it would not have pulled apart. Crouch was using it in the ordinary way, the manner in which he was required by the company to use it, in putting water into coaches. He had a right to assume that the appliance was in a reasonably safe condition for use, but manifestly it was not and it does not appear that the defect was known to him. In Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 232, it was said:
“It is the duty of a master to furnish a safe place for his servants to work, and reasonably safe tools and appliances to work with, and the employee, without instituting an investigation to ascertain the condition of the premises, may assume that the master has performed this duty.” (p. 67.)
In a case where a sledge hammer, a simple tool, was used by an employee, a sliver of steel broke from the face of the hammer sup plied by the defendant and used by a helper, injuring his eye. The hammer was defective in that there were breaks on its face, and upon the contention that the employee should have observed its defective condition, and was himself guilty, of negligence in continuing to work with the defective tool, also that he assumed the risk of injury from the use of the hammer, and hence the defendant was not liable for the injury, it was held that the company was negligent; that the risk of injury from the defective hammer was not assumed by the employee, and that whether the employee saw the defect in the hammer or should have seen it was a question for the jury to determine. (Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632.) In the course of the opinion it was said:
“No duty rested upon the plaintiff to make an independent investigation of the sledge which the helper brought to the work, for the purpose of ascertaining if it was safe for use. It was the master’s duty to provide the helper with a fit tool. It was not incumbent upon the plaintiff to stop his work to see if that duty had been performed. He could rest upon the assumption that the master would not permit a helper to appear with a defective sledge. Therefore, unless his attention was in fact drawn to the imperfections of the sledge, or unless the sledge was so obtruded upon his gaze that he could not but observe it, the injury could not be charged to any want of care or breach of duty on his part.” (p. 128.)
Further along it was said as to assumption of risk:
“A servant assumes only those hazards which are the natural incidents of the employment. Tools which are dangerously defective are not the natural incidents of any employment. It is the master’s absolute and unassignable duty to supply safe ones. If defective tools are furnished the servant may assume the risk attending their use, but he can be held to have done so only when he has knowledge or the equivalent of knowledge of the facts and of the danger.” (p. 137.)
See, also, Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586; Steele v. Railway Co., 87 Kan. 431, 124 Pac. 169; Teczav. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Brooks v. Mfg. Co., 94 Kan. 86, 145 Pac. 840.
We conclude that the case should have been submitted to the jury. There was evidence tending to show the negligence on the part of plaintiff, and under the evidence it cannot be held as a matter of law that the plaintiff assumed the hazard of the use of the defective appliance.
The defenses alleged were not reached, and hence the defendant has had no opportunity to make a showing as to Crouch’s knowledge of the defect in the appliance he was using. As the case stood when the demurrer to the evidence was filed, the question whether he saw the defect and understood the danger or should have known of it was a question for the jury to determine.
The judgment sustaining the demurrer is therefore reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus to compel the board of education of the city of Eureka to give credits and to issue diplomas to a student in the high school. The writ was allowed, and the board appeals.
The school system was organized in the usual way. C. U. Phillips w.as superintendent of schools. H. O. Le Grande was principal of the high school. Edith Walker was instructor in history. Kathleen Ryan entered the high school as a freshman in 1922, completed the successive courses of study, and was enrolled as a member of the senior class of 1925-’26. Her senior-year studies were physics, algebra, Latin, American history, journalism, and harmony and piano. Extra tuition was charged for the music course. On.May 18, 1926, the day before commencement, the final examination in American history occurred. While the examination was in progress Miss Walker discovered a paper in Kathleen’s possession containing notes on American history. A rule forbade possession of books or papers during examination. Kathleen was told she need not proceed further; and was denied credit in American history. Without that credit her record would show the high-school course was not completed, and she was denied a diploma. When her deposition was taken previous to the trial, which occurred on November 16, 1926, she testified she was seventeen years old.
The law governing the examination was promulgated by the principal of the high school, and read as follows:
“Please read to each group before the examination:
“1. There must not be any books or papers in possession of anyone during the examination.
“2. Any one known to give or receive help in any way will themselves receive zero in the examination.”
A copy of these rules came into the hands of Miss Walker just previous to the beginning of the school year 1925-’26, and previous to the first examination held after school commenced she read the rules to all students in her classroom, including Kathleen.
The answer of the board of education pleaded, in terms suggesting indictment by grand jury for felony, that Kathleen willfully and wrongfully and with intent and purpose to receive aid from certain data pertaining to the examination in American history, took such data with her to the classroom, and had it with her during the examination, in violation of the rules and regulations concerning the examination.
Kathleen made some notes on American history on a full-size sheet of theme paper, and went to school expecting to use the notes for review before the examination commenced. The examination commenced at once, and students were directed to deposit their books in a designated place. Kathleen folded the sheet, placed it in her history text, and deposited the book as directed. She testified that later she went to the book for her blotter. The sheet fell out, and she folded it in the blotter, took it to her desk, and placed it under her ink bottle, where she testified it remained until Miss Walker took possession of it. Miss Walker testified to finding the paper inside the blotter on top of Kathleen’s desk. She said her attention was directed to the desk by the fact that Kathleen had a piece of half-closed paper in her lap, and had her eyes directed downward and peering into it. The rule forbade possession, and Kathleen was guilty of possession. Rule 1 attached no penalty for mere possession of papers.
There was no allegation in the answer of the board that Kathleen did in fact derive any help from the data. Evidence bearing on the subject was introduced at the trial. Kathleen’s explanation of possession precluded receiving help from the paper. Miss Walker testified she did not know that Kathleen read from the paper. Kathleen’s father testified Miss Walker told him there seemed to be doubt about whether Kathleen cheated, and she ought to have the benefit of the doubt. Miss Walker testified she did not use the word “cheated,” and doubtless Kathleen’s father testified to the substance and not to the precise words used in the conversation. The case was presented to the superintendent of schools by Miss Walker and Kathleen. He testified it was not clear to his mind that Kathleen cheated. The district court was authorized to find that receiving help from the paper was not established. The general finding in Kathleen’s favor includes such a finding, the penalty prescribed for violation of the second rule was not incurred, and a grade of zero for that examination was not authorized.
Presumably to show disposition to cheat, and to degrade her, Kathleen’s record was searched and was exposed by the board. The Latin class was reading Cicero. A member of the class spent her Christmas vacation translating in advance. One day her book and notes were borrowed by Kathleen and another girl, who used the notes in recitation. They were given zero for that day’s recitation. Whether the notes were abated as a common nuisance because the owner had voluntarily parted with possession and they were used as a vehicle for transportation of illicit information, does not appear.' But the incident raises in the court’s mind a question in American history: What became of the interlinear literal translations of the Latin texts that were available for use, under necessity’s sharp pinch, in the days when Christmas vacations were used, if at all, for making up and not for getting ahead, and when—
On reflection, the court will drop that subject as incompetent, irrelevant and immaterial.
On another occasion, during a daily examination in which every one took some part, Kathleen’s eyes wandered to the desk of another student on which lay an examination paper.
The objects of an examination were enumerated by Dr. A. Lawrence Lowell, president of Harvard university, as follows: “1, to measure progress of the pupil; 2, as a direct means of education; 3, to set a standard for achievement.”
The rules did not deal specifically with wandering eyes. If just letting the eyes wander across the aisle to another paper should stimulate thought, perhaps it might be construed as receiving help. If there were an expression of distress or yearning in the eyes', which might occur once in a four years’ high-school course, perhaps it might be construed as an attempt. But in case a boy or girl were nonplussed by some examination question, might not wandering of the eyes toward a neighbor’s paper help to achieve Doctor Lowell’s object No. 2?
Miss Walker ordered Kathleen to report to the principal, and delivered Kathleen’s notes to the principal, who put them in his files. A photostatic copy is attached to the abstract. It contains a statement, in proper order, of President Wilson’s famous fourteen points, and will be preserved in the archives of this court for reference by those who may, as the years go by, become rusty on the subject. After hearing what Kathleen and Miss Walker had to say of the incident, the principal considered the matter was too serious for him to decide alone, and he called a meeting of the high-school faculty. The meeting occurred in the forenoon of commencement day. Kathleen and Miss Walker made statements, and at the conclusion of the statements the faculty voted fourteen to one to enforce the rule which required that Kathleen be given zero on the examination. But that was not all. The girl cheated, or at least she was 'suspected of cheating. Other girls and boys might think about cheating sometime, in spite of the law, and one way to guide the adventurous footsteps of confident immaturity is to terrify by horrible example. It is true this method does not always work. Thus in the original home of our Puritan ancestors pocket-picking was at one time punished by hanging. More pockets were picked at a hanging than on any other holiday; and in other instances brutality has defeatéd its own ends. The method, however, has antiquity in its favor. It was employed in the dark ages, and the faculty voted to deprive Kathleen of all credit in American history for the entire year. But that was not all. Kathleen had finished the course in music, and gave the graduating recital in that course. Credit in music depended on credit in American history, and her music credit was automatically forfeited. Madame Roland’s memorable apostrophe to Liberty might well be addressed to Virtue.
Of course, one who had eaten forbidden fruit could not be allowed to mingle with the righteous members of her class, and the teacher who had charge of the class-day program performed the office of the angel with the flaming sword at the gate of Kathleen’s lost Eden. When Kathleen, for reasons which will presently appear, insisted on taking part, the teacher would have nothing more to do with the contaminated exercises, and left the building.
The single vote against the vindictive action of the faculty meeting was cast by Miss Walker. The principal reported to the superintendent in writing as follows:
“At a meeting of the high-school teachers this morning, it was decided by vote of fourteen to one to refuse to allow Kathleen Ryan any credit in American history for the past year. The cause of this decision was the result of her having been caught cheating in the final examination yesterday afternoon. This plan of disallowing credit in such cases is, the faculty believes, quite universal. This means that she has failed in a subject required in all courses for graduation.”
Whether Kathleen knew anything of the widely heralded revolt of modern youth, we do not know, but she appealed to the superintendent. After the superintendent received the communication from the principal, he listened to Kathleen and Miss Walker, and directed Miss Walker to give Kathleen another examination. The examination was given, but the principal directed Miss Walker not to record the grade. Mr. Ryan testified the principal told him she passed, the principal said he did not remember the grade, but it was a passing grade. The principal denied making these statements. The question of veracity was one for the district court to determine, and the court made an express finding that Kathleen had received a passing grade.
At this point, disgraced and humiliated, Kathleen Ryan, just a high-school girl, who had not yet learned what many a boy and girl does not learn until late in college life, or even later — that veracity of thought and veracity of action are best, even under great temptation — goes out of the picture.
The second examination was commenced about 2:30 in the after noon. News of it got abroad, and the faculty held another meeting. As a result of the meeting, the following naive communication, signed by all the members of the faculty, was sent to the school board:
“We, the undersigned, protest against the action of the superintendent in overruling the decision of the faculty in the Ryan controversy. We feel that this type of administration is not conducive to an orderly school system. We ask that the action taken by the faculty this morning be upheld by the board of education, and Kathleen Ryan be not permitted to appear with the graduating class to-night.”
Commencement exercises were to begin at eight. There were six members of the board, and four of them held a meeting at 6:30. Kathleen was not present or represented. One of the members of the board testified he did not know whether presence of Kathleen’s papers in the classroom was accidental or not; the object of the meeting was'to back up Mr. Le Grande and the faculty, and to overrule Mr. Phillips, the superintendent. Another member of the board told Mr. Ryan the faculty said if Kathleen were allowed to graduate they would all resign, and so he thought he would stand up for the faculty.
When the members of the senior class assembled, in the midst of flowers and to strains of music, for the greatest event in their lives up to that time, and received their diplomas in the presence of an audience composed of proud parents and admiring friends, Kathleen Ryan was denied hers.
Children as a class do not develop uniformly in body, mind or moral apprehension. Self-mastery is seldom fully attained at high-school age. Some are a long time putting away childish things. But their peccadillos and delinquencies are not crimes, and the method of dealing with them is to cultivate in them the wider view, not to apply the branding iron to their foreheads and banish them as outlaws while they still think and speak and understand as children. Superintendent Phillips evidently understands youth, sympathizes with it, and has that faith in its ultimately reaching sound maturity which must sustain all educational endeavor, or the effort is misspent. When asked why he gave Kathleen permission to take another examination, he said: “She was an adolescent girl and deserved recognition.”
All the board of education did was to overrule the head of the schools, at the behest of a mutinous faculty who had imposed an outrageous ex post facto penalty upon a student who had not violated the only rule read to her providing a penalty. This was done without a hearing, without consideration of her guilt or innocence of fault, and without knowing whether she had completed the course. It is not necessary to debate legality of such action.
The findings of the district court that Kathleen was entitled to a passing grade in American history, that she completed the high-school course of study and was entitled to a diploma, and that she completed the course in music and was entitled to her credits in that course and a diploma, are sustained by the evidence, and the judgment based on those findings is affirmed. The cause is remanded, however, in order that the district court may fix a time in which the credits may be entered on the high-school records, certificates of such credits may be furnished to plaintiff, and diplomas may be executed and delivered to her. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal by the Kansas soldiers’ compensation board, from a judgment directing payment of compensation to the plaintiff for his services in the United States marine corps during the world war.
The petition recites that application for compensation was filed “on the-day of-, 192 — .” The defendants in their brief say the application was filed in September or October, 1922. Compensation was denied in April, 1924, but the plaintiff did not receive notice thereof until in 1925, when in response to a letter written by him to the secretary of state, a letter was received by the plaintiff stating that his claim had been disallowed in April, 1924. A notice of the disallowance of the claim had been filed with the county board of compensation; that notice contained the following:
“ ‘Because discharge certificate lias apparently been altered to show service from June 16, 1917, instead of June 16, 1918, the correct date, your claim is not considered an equitable one.’ ”
There was evidence which tended to prove that in November, 1923, and in November, 1924, the secretary of state in conversation with the plaintiff had told him that no action had been taken by the board on his claim. The appeal to the district court was filed April 18,1925.
In Wilson v. Soldiers’ Compensation Board, 118 Kan. 165, 166, 233 Pac. 1034, the following language is found:
“The statute provides that in all oases of the disallowance of claims by the board ‘the secretary of the board shall enter an order setting forth such dis-allowance and the reasons therefor, and shall forthwith mail to the applicant and to the proper county board a copy of said order, which shall show upon its face the date upon which it was entered.’ (R. S. 73-123.) In the absence of a showing to the contrary, the presumption is that the secretary performed his duty.”
The evidence of the conversations with the secretary of state was not sufficient to overcome the presumption that the statute had been complied with.
More than ninety days elapsed between the disallowance of the plaintiff’s claim and the appeal therefrom. This case is controlled by Kinyon v. Soldiers’ Compensation Board, 118 Kan. 367, 234 Pac. 949, and Fraundorfer v. Soldiers’ Compensation Board, 118 Kan. 782, 236 Pac. 637. The appeal was not taken in time.
The judgment is reversed, and the trial court is directed to enter judgment for the defendants.' | [
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The opinion of'the court was delivered by
Marshall, J.:
The action by the plaintiffs, husband and wife, is one to have a deed conveying real property from them to the defendant declared to be a mortgage to secure the payment of an indebtedness owing from the plaintiff, David O. Wilson, to the defendant. Plaintiffs asked that the defendant show the amount of such indebtedness, and that a precedent mortgage given by the plaintiffs to the defendant be canceled and annulled. The defendant in his answer alleged that he was the owner of the property, and that he was in the possession thereof, and asked that his title thereto be quieted. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
The action was tried by the court without a jury. No special findings of fact were made, but a general finding was made in favor of the defendant.
The plaintiff, David O. Wilson, owned eighty acres of land in Cowley county. He was financially embarrassed and became in debted to the defendant. To secure that indebtedness and other money that might be advanced by the defendant to David O. Wilson, the latter, previous to his marriage to the plaintiff, Grace B. Wilson, executed a mortgage on the real property for the sum of one dollar. The mortgage contained the following provisions:
“This grant is intended as a mortgage to secure the payment of any sum or sums of money which is now owing to said Grant Stafford and future advancements as well, by the party of the second part, or his assigns to the party of the first part herein at the date hereof or from time to time as the parties hereto either of them may now or hereinafter agree, with interest on said advancements from the date of the advancement until paid; also it is intended as a mortgage to indemnify and secure the payment to said Grant Stafford of any sum or sums that he may incur in the way of expenses, advances or liability upon any bond or bonds by the said Grant Stafford as surety for the said first party herein; it being the intention of the parties hereto that this mortgage shall secure any advances made from time to time to said party of the first part by the second party, evidenced whether by note, memorandum, book account, expense or liability as surety on bonds or in any manner for which the said David O. Wilson may become responsible to the said party of the second part, inclusive of legal services or service of any kind for which said David O. Wilson may be responsible to said Grant Stafford, and to remain in full force and effect between parties hereto or assigns until all advancements or liabilities incurred made by virtue hereof are paid in full with interest.”
Advancements were made by the defendant to David O. Wilson until the total amount reached approximately the sum of $3,000, when David O. Wilson desired more money, and the defendant refused to advance it unless the plaintiffs would execute to the defendant a deed conveying to the latter the real property in controversy. Such a deed was executed, delivered and placed on record, and more money was advanced by the defendant to David O. Wilson. At about the time the deed was executed, David O. Wilson signed a written acknowledgment of payment in full for the deed conveying the real property to the defendant, recited the amount of money advanced by the defendant, and declared the defendant to be the owner of the land. At the same time, the defendant gave to the plaintiff David O. Wilson a written option to purchase the land on or before September 1, 1925, at the price of $3,090.
1. We quote from the brief of the plaintiffs as follows:
“When Mr. Stafford took the deed from Wilson and wife to the tract in controversy, he held a mortgage upon it, executed by David O. Wilson. Therefore, taking the equity of redemption without a foreclosure, the burden of proof was upon him to sustain its equity, whenever the transaction was quef tioned.”
The plaintiffs cite Jones v. Franks, 33 Kan. 497, 503, 6 Pac. 789, and quote from that decision as follows:
“ ‘To give validity, however, to such a sale by a mortgagor, it must be shown that the conduct of the mortgagee was in all things fair and frank, and that he paid for the property what it was worth. He must hold out no delusive hopes; he must exercise no undue influence; he must take no advantage of the fears or poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him. Where confidential relations and the means of oppression exist, the scrutiny is severer than in cases of a different character. The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered and never-intended to reclaim, is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt with interest, will compel him to give back that which he has taken with 'unclean hands. Public policy, sound morals, and the protection due to those whose property is thus involved, require that such should be the law.’ . . . ' •
“Where the mortgagee takes the mortgaged property in satisfaction of his debt, the burden is upon him to show that the sale or release of the mortgagor’s equity was made willingly, that the conduct of the mortgagee was in all things fair and frank, and that he paid for the property what it was worth.”
The plaintiffs also rely on Live Stock Co. v. Trading Co., 87 Kan. 221, 225,123 Pac. 733, where the court said:
“A mortgagor may, of course, sell the mortgaged property to the mortgagee, although the transaction will be scrutinized closely to determine its fairness-being almost as much open to suspicion, it is said, as a purchase by a trustee from his beneficiary. (Villa v. Rodriguez, 79 U. S. 323.) It is also said that a conveyance of the mortgaged premises from the mortgagor to the mortgagee will be regarded as a mere change in the form of security, unless it clearly and unequivocally appears that both parties intended otherwise.”
Whether or not the evidence was of such a character as complied with the rule relied on by the plaintiffs was for the court to determine. If there was evidence to support the finding made, it is conclusive in this court. (Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559; Mercantile Co. v. Stiefel, 82 Kan. 7, 13, 107 Pac. 774; Ross v. Cox, 93 Kan. 338, 339,144 Pac. 227; Hegwood v. Leeper, 100 Kan. 379, 383, 164 Pac. 173; Taylor v. Holyfield, 104 Kan. 587, 589, 180 Pac. 208; Jackman v. Development Co., 106 Kan. 59, 65, 187 Pac. 258; Kuhn v. Kuhn, 112 Kan. 155, 160, 210 Pac. 343; Stillie v. Stillie, 120 Kan. 565, 569, 244 Pac. 844; Hoover v. Hopkins, 122 Kan. 65, 67, 251 Pac. 411.) There was evidence from which the court might have found that the defendant took advantage of his situation as mortgagee and thereby violated the principle contended for by the plaintiffs, but there was evidence which tended to prove that the plaintiff David O. Wilson was deeply in debt; that a number of persons other than the defendant held mortgages or other liens against the land in large amounts; that those mortgages and liens were in process of foreclosure; that the plaintiff David O. Wilson needed money; that he desired to obtain it from the defendant; that the defendant would not advance it unless the plaintiffs deeded the land to him; that the defendant furnished additional money; that the plaintiffs executed the deed; that David O. Wilson signed an acknowledgment of the payment for the deed; that a contract for the purchase of the property from the defendant was then entered into; that the plaintiff David O. Wilson consulted an attorney concerning the contract for purchase of the land before making the deed and signing the contract; that the plaintiff tried to sell the land; that he had offers for the purchase of the land for more than the entire amount of all the liens against'it; and that the plaintiff failed to sell the land. The evidence was sufficient to sustain the finding of the court under the rule contended for by the plaintiffs.
2. The plaintiffs contend that the deed was a mortgage at the time it was executed. That was a question of fact to be determined from the evidence. The mortgage to the defendant, the deed to him, the acknowledgment of payment for the deed, and the option contract were relevant to that question. In addition to that evidence, the plaintiff, David O. Wilson, testified that the option contract represented his interest in the land and the agreement between him and the defendant so far as his interest therein was concerned. The evidence was sufficient to sustain the general finding of the court that the deed was absolute and not a mortgage.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This appeal presents the question whether an employer under the workmen’s compensation act, who agrees to arbitrate the single question of amount of compensation, is precluded from a trial of other issuable questions.
The plaintiff claimed to have received an injury by accident which arose out of and in the course of her employment. The parties signed a written stipulation and consent to arbitrate to the effect “that no other question except the amount of compensation, reference of character and quality of disability and period for which payments of compensation shall continue in accordance with the workmen’s compensation laws of the state of Kansas, shall be presented to, considered by or reported upon by said arbitrator.” The arbitrator having taken evidence, filed a report with the clerk of the district court awarding plaintiff compensation for eight years at $6 per week, or $2,290 in the aggregate, payable $194 in a lump sum, balance in weekly payments of $6. Later, plaintiff filed a motion for judgment on the award for a lump sum equal to eighty per cent thereof, pursuant to the provisions of the statute (R. S. 44-529). This motion was considered by the court and granted over the objections of defendant.
The defendant appeals, contending that the court was without jurisdiction to enter judgment on the award or for any sum until after the trial of the issues that had not been submitted or referred to the arbitrator. The contention must be sustained.
The stipulation referred nothing to the arbitrator except those matters referable by statute, viz., the amount of compensation, but either party had the right to require the arbitrator to find the character and quality of disability and period over which payments of compensation should continue. If the parties had submitted to arbitration the questions whether there was an accident arising out of the employment; whether it arose in the course of the employment; whether it happened in, on or about the premises; whether the parties were operating under the provisions of the act, or any other questions other than the amount of compensation, then they would have been bound by the report and findings of the arbitrator thereon and there could be no review of the award by either party nor appeal therefrom except for the limited review provided by the statute. An employer is entitled to a trial on all questions of fact and law not submitted to an arbitrator. Such trial may be had either before or after the amount of compensation the injured workman is entitled to receive has been awarded by the arbitrator.
“Either before or after arbitration, the party from whom compensation Is demanded must have opportunity to contest liability on grounds not involved in arbitral award and its statutory review. . . . Should the workman so desire, he is entitled to arbitration of those issues referable by statute; should the employer so desire, he is entitled to trial of those issues not referable.” (Tidwell v. Schaff, 114 Kan. 255, 259, 260, 217 Pac. 702. See, also, Hobson v. Wilson Bros. Coal & Mining Co., 120 Kan. 338, 243 Pac. 214.)
In the instant case the employer did not consent to arbitration except as to amount of compensation, etc., and has had no trial of other issues. The plaintiff was not entitled to judgment on the arbitrator’s award until a decision was had on the other issuable questions.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J,:
This is a rehearing. (Riemann v. Riemann, 123 Kan. 718, 256 Pac. 1004.) The facts were fully stated and the legal question developed in our first opinion. Briefly repeated, John J. Riemann, of Barton county, died intestate, unmarried and without issue. The appellant, Maria R. Fett, is the adopted daughter of Henry J. Riemann, a deceased brother of John. Henry lived in Illinois, and appellant was adopted by him in accordance with the adoption law of Illinois, one feature of which is that the relation between adoptive parent and adopted child “shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adoptive father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such act of adoption had been taken.” (Public Laws, Illinois, 1867, p. 134.)
Following Boaz v. Swinney, 79 Kan." 332, 99 Pac. 621, we held that the right of an adopted child to inherit Kansas land was dependent upon the peculiarities of the adoption law of the state under which the' adoption proceedings were had. The court is now disposed to reexamine the soundness of that conclusion.
Going back to first principles, the law regulating the transmission of the estates of decedents, testate or intestate, is whatever the law-making power declares it to be. As to real estate, in cases of intestacy it devolves in accordance with the statute of descents and distributions in the state where the land is located. (Cooper v. Ives, 62 Kan. 395, 63 Pac. 434; Williams v. Wessels, 94 Kan. 71, 145 Pac. 856.) The law can make anybody an heir (Newby v. Anderson, 106 Kan. 477, 188 Pac. 438), and even the rights of blood kindred to inherit are prescribed by statute and would not exist apart from the statute (Hannon v. Taylor, 57 Kan. 1 syl. ¶ 2, 45 Pac. 51).
While the matter of adoption of children occupied a place of importance in the civil law (Cooper’s Justinian, 3d ed., 28), the com- ■ mon law gave it no countenance. Speaking generally, in this country the law of adoptions is whatever the statute prescribes. The statutes of some states, like Kansas, are liberal, and confer upon an adopted child and reciprocally on an adoptive parent every right which exists where the relationship is that of parent and child by legitimate blood kindred. (R. S. 38-107, 22-119, 22-120; Baird v. Yates, 108 Kan. 721, 196 Pac. 1077.)
Touching the rights of children adopted in one state to inherit land in another state, the matter of comity between states is not without its significance, but not necessarily more so than in dealing with the rights of other children or people in general. tSo far as the law of the state where the adoption proceedings were had is in accord with the law of the forum it will be respected, and where it is more or less at variance with the law of the forum it may be disregarded* Thus in Keegan v. Geraghty et al., 101 Ill. 26, a child adopted in the state of Wisconsin was denied the right to inherit in Illinois from a collateral relative of its adoptive parent. This was a perfectly logical decision for the Illinois court to make, because Illinois law expressly denies to adopted children that right; and- comity between-states did not require that an adoption under Wisconsin law should be accorded greater potency in Illinois than an Illinois adoption itself would be. In other words, the Illinois court quite properly declined to depart from the policy of its own law governing the devolution of Illinois real property. But the same course of reasoning, pursued in Keegan v. Geraghty, might very well have led this court to a different conclusion from that reached in Boaz v. Swinney. In Kansas, as elsewhere, intestate succession of real estate is governed by the local law. (18 C. J. 809.) Paraphrasing the text of Hood v. McGehee, 237 U. S. 611, 59 L. Ed. 1144, Kansas is the sole mistress of the devolution of Kansas land -by descent. By our local law the rights of inheritance enjoyed by adopted children are identical with those enjoyed by natural, legitimate children. ‘And our courts should not be required to give cognizance to a peculiar discrimination imposed by foreign law upon adopted children when such discrimination is so greatly at variance with the generous spirit of our own law and so repugnant to the theory which underlies the law governing adoption of children in this state. In Dreyer u. Schrick, 105 Kan. 495, 185 Pac. 30, where pertinent paragraphs,of our statute of adoptions and of our statute of descents and distributions .were reproduced and .cases .from other jurisdictions discussed, this court said:
“Statutory peculiarities may account, 'in part, for some of these decisions.
“In this state adoption carries with it every feature of the domestic relation of parent and child, except natural parentage. Capacity to inherit follows as an incident, but not as the sole end. . . . The reciprocal rights, duties, privileges, responsibilities and liabilities created are those of parent and child m fact, and statutes referring to the relationship, which do not clearly exclude adopted children, must be interpreted as including them on equal footing with natural children.” (pp. 497, 498.)
Not only may different statutes constrain different judicial conclusions on questions of law pertaining to the incidents and consequences attaching to the adoption of children, but the hostile attitude of the common law towards the whole subject of legitimation and adoption of children is not unlikely to be reflected in the decisions of great American courts which adhere to the common-law tradition. (Statute of Merton, 20 Hen. III, c. 9 [a. d. 1235]; Birtwhistle v. Vardill, 2 Cl. & Fin. 571, 5 Eng. Rul. Cases 748 [House of Lords, 1840]; Keegan v. Geraghty, supra; Frey v. Nielson, 99 N. J. Eq. 135, 132 Atl. 765.) While the jurisprudence Qf this state is greatly obligated to the common law, on this particular matter of adoption as well as on the law of intestate succession our lawmakers deliberately crossed over to the side of the civil law — an historical fact which gives a keynote to the general trend of decisions of this court throughout its entire history.
We have referred particularly to the case of Keegan v. Geraghty, but it is only a type of many, some of which are cited in Boaz v. Swinney, supra. There is, however, what now seems to us to be a more logical solution of the legal question than that heretofore reached by this court. We think there is no such status as that of a partially adopted child, any more than there is of a partially married spouse. A child is adopted or not; a woman is either married or not. By the law of the state where a woman is married she may be entitled on the death of her husband to inherit one-third of his real estate. In Kansas she would inherit one-half at least, and in the event her husband died intestate and without issue she would inherit the whole of it. In the widow’s case we would pay no attention to the restrictions of her rights of inheritance imposed by the law of the state where the marriage occurred. So, too, in some jurisdictions illegitimate children are disqualified to inherit. In this state they inherit from the mother, and from the father also if he has openly acknowledged their paternity. (R. S. 22-121, 22-122.) Kansas courts would not think of denying an illegitimate child his right of inheritance according to Kansas law because of some limitation or bar of such right imposed by the law of the place of his birth or domicile. (McLean v. McLean, 92 Kan. 326, 329, 140 Pac. 847.) And so it does not seem logical to bar an adopted child of its right to inherit Kansas land under Kansas law because its adoption occurred in a state where rights of inheritance are less generous than under our law.
In the well-reasoned case of Calhoun v. Bryant et al., 28 S. Dak. 266, the question was whether an adoptive mother could inherit South Dakota land from her adopted child when the adoption proceedings had occurred in Illinois, it being conceded that she would be disqualified to inherit under the Illinois law of adoptions. After outlining the liberal attitude of the law of South Dakota towards adoptions, the court said:
“Counsel for appellant urge that adoption has its foundation in contract, between the person adopting and the child adopted, and that the whole law of the state governing and defining the legal rights flowing from adoption enters into and becomes a part of the relationship created thereby. We cannot agree with this interpretation of these statutes. We believe it should be held that the statutes of each state authorize and permit the creation of the relationship of parent and child by adoption, with such incidental rights within the state as are conferred by the laws of that state, in the matter of custody, control, and the right of inheritance of property in that state. The relationship created no more has its foundation in contract than has the relationship! created by birth. . . . Appellant’s counsel contend and cite, numerous decisions which say that the ‘status’ of the parent and the adopted child is fixed by the law of the state in which the adoption takes place, and urge that these authorities in effect held that the right of inheritance of parties to an adoption is fixed by the law of that state. The conclusion of such an argument would be that this court must enforce rights of inheritance of property in this state as established by the laws of a. sister state, or must limit the right of inheritance of property as the same is limited by the laws of another state. We cannot accede to this view. . . .
“. . . As we have suggested, the ‘status’ or ‘relationship’ of parent and child, whether by birth or adoption, is clearly distinguishable from the right of inheritance. The legislature of another state may declare, in the absence of constitutional restrictions, that no child, either by birth or adoption, shall possess the right to inherit property from its ancestors. Would the courts of this state hold that under such law a child, resident of that state, would be rendered incapable of inheriting real property of the parent which was situated in this state? . . .” (pp. 275-277.)
The court discussed a number of American and English cases, including our own case of Boaz v. Swinney, and held:
“That the right of inheritance, by the adoptive mother, :of real property in this state is incidental to the relationship created by the adoption under the laws of Illinois, and is governed by the law of this state, and not by the law of that state defining the right of inheritance between the adopted child and the adoptive mother.” (p. 283.)
In Anderson v. French, 77 N. H. 509, L. R. A. 1916A, 660, the appellant claimed a right of inheritance in the New Hampshire intestate estate of a sister of. her adoptive father, which claim was. disputed by the next of kin on the ground that appellant’s adoption had been effected in Massachusetts under whose law an adopted child was denied the right of inheritance from the lineal or collateral kindred of the adoptive parent. After analyzing the familiar cases on this general subject, the New Hampshire supreme court discourses on the analogy of marriage and adoption, and the effect of these upon the right of inheritance, and says:
“A marriage legal in one state is legal in every state; but the distributive share of the wife in her husband’s estate is not ascertained by the law of the state where the marriage took place, but by the law of the husband’s domicile at death. This principle is universally recognized and is hot questioned by the appellees. On the other hand, they say that the status of marriage has no analogy to adoption, because it is a very ancient custom. Whatever may be said as to the status of marriage and adoption, the rights of inheritance as to both relations are governed largely by statute in this country; and no logical reason has been advanced, and none occurs to us, why the rights of'a married woman in her husband’s personalty should be determined in accordance with the laws of his last domicile, and the rights of an adopted child in relation to personalty by the laws where the adoption occurred, regardless of the domicile of the owner at the time of his death. ‘The law of the state where the marriage is consummated establishes the' “relationship” of one to the other as husband and wife or parent and child which is universally recognized, but the mere incidents flowing from that “status” or relationship are controlled by the law of the domicile of the parties or the situs of the property. The interest of the wife in the husband’s property whether she take as heir or otherwise, is wholly a creation of statute law, precisely as is the right of inheritance between parent and child, natural or adoptive, 'and wg see no reasonable ground for distinction between the two as to the principle under discussion.’ (Calhoun v. Bryant, 28 S. Dak. 266, 133 N. W. 266.)
•" “Rights of inheritance in property do not accrue until the 'death of the owner; and'the' rights of an adopted child to inherit'cannot be fixed and determined when the adoption takes' place, for such rights may be changed, modified, or repealed by the legislature of the state. They are separate and distinct from the act of adoption. What an adopted child shall inherit is not ascertained by the law in force at the time of the adoption, but at the death of him from whom he seeks to take. The relationship of an adopted child to his adopting parents is not subject to change; the inheritable capacity of such child may, however, be changed at any time. Consequently the rights of the adopted child to inherit property should be determined when and where inheritance is sought, in accordance with the ordinary rule.” (p. 514.)
We have not failed to note the forcible dissenting opinion of the chief justice of New Hampshire in the case just cited; but, as pointed out by the editor of L. R. A., the diverse conclusions reached by the majority of the New Hampshire court and its dissenting chief justice are based upon their respective views touching the nature of the disqualification imposed by the law of Massachusetts, the majority view being that it was merely a feature of the Bay State’s law of inheritance, and the minority view that it was a limitation of the appellant’s status established in and by the adoption proceed- • ings. As already indicated, we favor the view that there is no such thing as a limited status of adoption (Bilderback v. Clark, 106 Kan. 737, 742, 743, 189 Pac. 977), and that the law of inheritance is a mere incident which is without controlling significance outside the state of its enactment, and should not be applied in another jurisdiction where its tenor is out of harmony with the law of the forum. See, also, instructive analysis of various cases in Simpson v. Simpson, 29 Ohio C. C. 503; and Goodrich on Conflict of Laws, 329-332.
We note that the intestate estate of John J. Riemann included both real and personal property. As he was a resident of Kansas at the time of his death the conclusion we have reached in regard to the real property applies also to the personalty. (18 C. J. 810.)
The case of Boaz v. Swinney, supra, is overruled; our former opinion and judgment in this case are set aside; the judgment of the district court is reversed and the cause remanded with instructions to permit the appellant to share in the estate of John J. Riemann in accordance with the rights of an adopted child as defined by Kansas law. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action for divorce brought by the plaintiff, Anthony Walton, against his wife, Ora Walton, the court granted him a divorce and adjudged that a parcel of real estate owned by the parties be set off to him free and clear of any claims of the defendant, and that all household goods and some other personal property located in the home, should be awarded to him except the sum of $282 which he had on deposit in a bank. In the decree it was adjudged that he should pay the defendant permanent alimony in the sum of $650, and further that she be given the bank deposit of $282, free and clear of any lien or claim of the plaintiff, and that he should pay the costs. Some time later the plaintiff moved the court for an order awarding him credit on the alimony which he was adjudged to pay for the value of certain personal property and household furniture taken by the defendant, and which the court had awarded to plaintiff, and that he be credited with the value of the property so misappropriated on the alimony he had been adjudged to pay. On this motion testimony was produced by the parties, the defendant claiming to own the property/ insisting that it was not property adjudged to plaintiff, nor community property, but was her sole and separate property. Upon the testimony the court at the end of the hearing sustained the plaintiff’s motion, ordering that the defendant be given ten days from the date of the order to return to the plaintiff certain articles of personal property taken and appropriated by the defendant, and directed that if she failed and neglected to return the articles within ten days, the plaintiff should be credited with the value of the same, to wit: $283.75, upon the award of alimony, and the judgment for alimony should to that extent be regarded as satisfied.
From this order an appeal was taken by the defendant, and there is added to it an assignment of error on the award to the plaintiff of the real estate.
First, it may be said that there is no merit in the complaint as to the division of property or award of alimony made in the divorce action. The defendant has never appealed from that judgment, and the time in which an appeal can be taken has passed. Neither has any modification of the judgment been made. The action of the court upon the plaintiff’s motion cannot be regarded as a modification of the decree originally entered, but was for the purpose of carrying out the provisions of that decree. It was no more than crediting upon the award of alimony named in the decree the property set off tq plaintiff under the decree and which the defendant had misappropriated and placed beyond his reach. She is given the option of returning the property misappropriated or of having its value credited upon the alimony awarded to her. The evidence in the case is deemed' sufficient to show that the property in question was awarded to plaintiff, and to establish the value placed upon it by the court. The award to her of $650 as alimony is reduced or abated to the extent of the value of the property misappropriated, and of this she has no reason to complain. If she chooses to return the property she will receive all of the award.
None of the contentions of the defendant approach a ground of reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These four actions had their inception in certain business transactions between plaintiffs and defendants which eventually culminated in damage claims or cross claims for libel of the person and slander of title of personal property.
Briefly stated, in No. 27,525, the Allis-Chalmers Manufacturing Company sued R. F. Lowry, a Seward county farmer, on three overdue promissory notes aggregating $1,605.87, secured by a chattel mortgage on three-fourths interest in 320 acres of wheat, crop of 1926, for which it prayed judgment and to foreclose its mortgage.
Defendant Lowry filed an answer admitting the execution of the notes and mortgage. He also filed a cross petition in six counts for $66,494.13 as damages because the plaintiff had served a written notice on a half dozen Seward county grain buyers to the effect that it had a mortgage on defendant’s wheat crop grown on certain described lands, and requesting that if the mortgagor should deliver any of that wheat crop without a written release from the mortgagee the grain buyer addressed would please withhold payment therefor except to some authorized agent of the mortgagee, and also advise'the mortgagee of any other disposition of such wheat crop by the mortgagor. The text of this notice and request reads:
“You are hereby notified that the undersigned, Allis-Chalmers Manufacturing Company (Incorporated), has a mortgage on all crops of three-fourths of 320 acres of wheat raised during the season of 1926, on the south one-half (Mt) of section ten (10), township thirty (30), range thirty-three (33), Haskell county, Kansas, and we hereby respectfully request, if any of said crop is delivered at your elevator or warehouse by said R. F. Lowry, Liberal, Kansas, or anyone for him, without written release from said Allis-Chalmers Manufacturing Company (Incorporated), or its authorized agent, that you will mark the tickets therefor ‘mortgaged’ and make them out in the name of the said mortgagee, Allis-Chalmers Manufacturing Company (Incorporated); that you will not cash any of said tickets unless presented for payment by a duly authorized agent of said mortgagee; that you will not pay for any of said crop in any manner without the consent of said mortgagee or its authorized agent, or until said crop is released from said lien, and that you will kindly notify said mortgagee when said crop is being delivered, whether to you or to someone else, or if it is being shipped direct by said mortgagor.
“Allis-Chalmers Manufacturing Company (Incorporated),
“By O. J. Thomas.”
Plaintiff’s demurrer to the several causes of action set up in defendant’s cross petition based on the foregoing writing was sustained. Defendant Lowry appeals.
In No. 27,529, the same plaintiff sued defendant R. P. Swartz on two promissory notes, amounting to $965.10, secured by a chattel mortgage on 160 acres of wheat and other chattels, for which judgment and foreclosure were prayed.
Defendant filed an answer and cross petition, admitting the execution of the notes and chattel mortgage, but setting up eight causes of action for damages in the sum of $85,861.99 on account of the publication among the Seward county grain buyers of a written notice and request similar to that set out above in Lowry’s case, except in matters of land description and other details of no present importance.
Plaintiff’s demurrer to this cross petition was sustained, and defendant Swartz appeals.
In cases No. 27,621 and No. 27,622, Jennie M. Neff and Charles Neff, her husband, brought separate actions for damages aggregating $152,870 for libel of the person and slander of title to personal property because of a publication among the Seward county grain buyers by the J. I. Case Threshing Machine Company similar to that of the Allis-Chalmers Company set out above, except as to land descriptions and other details of no present importance. Involved in these Neff cases, however, was one distinct feature growing out of certain misdescriptions of the luands on which the Neff wheat covered by the J. I. Case Company’s chattel mortgage was grown. These cases were tried separately and at the close of plaintiff’s, evidence in each case, a demurrer thereto was sustained. ' Plaintiffs appeal.
Touching so much of these appeals as questions the propriety of the trial court’s rulings on the demurrers to the causes of action or cross action for libel of the person and slander of title founded on the written notices sent to the several grain buyers in the local market centers where these mortgaged wheat crops were grown and to some or all of whom those crops would most likely be marketed, and to whom they were in fact marketed, a careful reading of these notices discloses no defamatory matter (State v. Huff, 96 Kan. 632, 152 Pac. 642) nor anything fairly susceptible of such an interpretation. (Hanson v. Bristow, 87 Kan. 72, 123 Pac. 725.)
So far as the statement of facts therein is concerned, the pleadings of the appellants in each case admit that such statement was true. The authors of the written notices did have the interest in the wheat crops they claimed to have under their chattel mortgages. Touching the mortgagee’s, request that if the wheat were marketed to the grain buyer addressed without a written release of the mortgagee the scale tickets should be marked and payment withheld except to an authorized agent of the mortgagee, that was a perfectly proper, businesslike communication for the mortgagee to make. The specific terms of the chattel mortgages are not reproduced for our perusal, so we must assume they contained the usual recitals of such instruments, which in legal effect would vest title to the wheat in the mortgagee. (R. S. 58-307.) The mortgagor could not lawfully sell the mortgaged wheat without the written assent of the mortgagee and to' do so would be a penal offense. (R. S. 58-318.) So the mortgagee was quite within its legal rights in requesting the grain buyers to keep track of the scale tickets and to withhold payment except to its authorized agent. (Burton v. Dickson, 104 Kan. 594, 180 Pac. 216, 775.) The reqpest to be advised if the mortgaged wheat was otherwise disposed of by the mortgagor had no semblance of a defamatory writing. It was simply a request for a legitimate business favor, and the request itself, as well as any fair, truthful answer it might have elicited, was privileged under the well reasoned precedents. (Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533; Kozel v. Kozel, 104 Kan. 530, 180 Pac. 278; High v. Hardware Co., 115 Kan. 400, 223 Pac. 264; 36 C. J. 1262.)
In the Lowry case, counsel for appellant urge particular attention to the fact that the appellant in 1926 had 2,000 acres of wheat which yielded 52,000 bushels, a major portion of which was marketed immediately after harvest and as it was incapable of segregation (by the wheat buyers, presumably) payment therefor was withheld because of the written notices served on the buyers. But the consequences of this circumstance cannot be laid to the mortgagee. A farmer having 52,000 bushels of -wheat needs a guardian and not a lawyer if he cannot make satisfactory arrangements with his creditor-mortgagee to facilitate the marketing of that vast crop because of the comparative bagatelle of a $1,900 debt covering a mere fraction of it.
Counsel for appellants reiterate the adjectives “false, scandalous, and defamatory,” which in our opinion are quite improperly ascribed to the written notices. As we have seen, the notices were neither false nor defamatory. The mortgagors executed those mortgages, and these were regularly recorded in the office of the register of deeds. Do appellants mean to admit that they executed some scandalous writings, or merely that the contents of the mortgages were-not scandalous, nor was it libelous or scandalous for the register of deeds to record them, but “false, scandalous and defamatory,” all three, for the mortgagee to write to the grain buyers concerning its; interest in the property covered by these mortgages? We think not. In each case, apparently, the event proved that the mortgagee’s, communications to the local grain buyers were well advised, for in. all the cases here presented the appellants did deliver mortgaged wheat to the local grain buyers without the written consent of the mortgagee. We do not overlook the fact that the recording of the-chattel- mortgages was constructive notice to the grain buyers of the existence of the chattel mortgages, but grain buyers are busy men, and it iss no easy task for them in the rush of the marketing, season to consult the records and verify the deliveries and see to it that they do not pay out cash to the wrong person for mortgaged wheat. The written notices were a very practical advantage to the grain buyers as well as to the mortgagees, as in that respect, also, they were privileged. In 36 C. J. 1262 it was said;-
“Generally, any communication published by one in good faith to another, in order to protect his own interest or to protect the corresponding interest of another in the matter in which both are concerned, is privileged when the-subject matter of the publication makes it reasonably necessary under the circumstances to accomplish the purpose desired.”
In the Neff cases evidence was introduced and defendants’ demurrers thereto were sustained. But the evidence disclosed nothing; of importance. It is true that in these cases the lands upon which-the mortgaged wheat was grown were inaccurately described, but plaintiffs showed no damage or prejudice on that account.
Touching the alleged slander of title, the theory of that claim is; based on the fact that the marketing of a lot of unmortgaged wheat was affected by the notices. But not more so than by the chattel mortgages themselves. Indirectly the mortgaging of any part of a wheat crop may cause a grain buyer to move cautiously about paying out money therefor. That is a trait of human nature. But the law gives sanction to the execution of such instruments and provides a public office for the recording of them; and damage suits will not •lie because they, are written about fairly and truthfully by or to parties concerned therewith. Finally, in view of the fabulous sums prayed for as damages in these ill-founded lawsuits it is not easy for this court completely to stifle its mistrust as to their bona fides and to feel assured that the judicial machinery of this state has not been used merely to harass the appellees or hinder them in the collection of their due. '
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The opinion of the court was delivered by
Johnston, C. J.:
This action is brought under the declaratory judgment statute to obtain an interpretation of “An act relating to cigarettes and other forms of tobacco; levying a tax for the sale thereof; and repealing sections 21-2201, 21-2202, 21-2203, 21-2204 and 21-2205 of the Revised Statutes of Kansas for 1923,” and par ticularly a declaration and determination as to the validity of section 18 of that act. The district court held the statute to be valid and from its judgment the plaintiffs appeal.
It is conceded that there is an actual controversy between the parties and no jurisdictional or procedural questions are raised.
The act provides for the issuance of permits to make sales of cigarettes and cigarette papers upon the payment of prescribed license fees. It also imposes a tax on all packages and booklets of those articles upon which stamps are to be procured and placed, denoting the tax thereof; and the stamps are to be canceled prior to the sale, removal or consumption of the articles under such regulation as the treasurer of state shall prescribe. Penalties are prescribed for sales made without licenses, or without the payment of the tax or without having stamps duly attached and canceled. There is a provision making it unlawful to sell or give away to minors cigarettes, cigarette papers, cigars or tobacco, and it is also made unlawful for proprietors of any place of business to permit minors to frequent such places of business while in the act of using tobacco in any form, and in an amendment of the original act penalties are prescribed for violation of these provisions. (Laws 1927, ch. 172.) The provision relating to advertisements, the validity of which is challenged in this action, is section 18 of the act, and is as follows:
“Sec. 18. Cigarette advertisements. It shall be unlawful for any person, company or corporation to advertise cigarettes or cigarette papers, or any disguise or subterfuge of either of these, in any circular, newspaper or other periodical published, offered for sale or for free distribution within the state of Kansas. It shall also be unlawful for any person, company or corporation to advertise cigarettes or cigarette papers on any street sign, placard or billboard; or in any package of merchandise, store window, show case, or any other public place within the state of Kansas.”
The plaintiffs, who are partners doing business under the firm name of The Alma Enterprise, bring this action in behalf of themselves and of the Kansas Press Association, engaged in publishing approximately 175 newspapers in Kansas, and in the printing of circulars and window cards, alleging that they have a large interstate circulation of their newspapers; that the manufacturers of cigarettes and cigarette papers outside of Kansas, engaged in shipping their products into Kansas in original packages, are selling them through advertising agencies located outside of this state, and that they had made offers to plaintiffs to publish in their papers advertise ments of cigarettes and cigarette papers, but that they are forbidden to publish such advertisements under the section quoted, while newspapers in Kansas City, Springfield, Joplin and St. Joseph, Mo., Lincoln, Neb., Denver, Colo., and a large number of other publications and magazines having a large circulation in the state of Kansas, are publishing such advertisements, and are .immune from punishment, while the Kansas newspapers are forbidden to publish them.
Plaintiffs contend that the restriction of section 18 transcends the constitutional limitations and infringes on the right of contract, on property rights, on the freedom of the press, places an unreasonable burden upon interstate commerce and offends the fourteenth amendment of the federal constitution.
The defendants insist that the constitutional objections advanced are groundless and unavailing, in that the statute is a proper exercise of the police power of the state, since it is designed and tends to promote the public health, morals, security, comfort and general welfare of the people of the state.
It must be conceded that it is competent and within the power of the legislature to regulate and even prohibit the sale of cigarettes within the state. In State v. Nossaman, 107 Kan. 715, 193 Pac. 347, it was decided that—
“The act (Laws 1917, ch. 166) prohibiting and prescribing penalties for bartering, selling or the giving away of cigarettes or cigarette papers and the keeping of them for barter, sale or free distribution is within the police power of the state and does not violate any of the principles of the fourteenth amendment to the constitution of the United States.”
This view is upheld in Gundling v. Chicago, 177 U. S. 183, 44 L. Ed. 725, and in Austin v. Tennessee, 179 U. S. 343, 45 L. Ed. 225. To be valid, however, this conceded power must be exercised with due regard to constitutional limitations, and if an act is so framed as to violate the due process clause of the federal constitution, if it arbitrarily and unreasonably interferes with or destroys personal or property rights of a citizen, or unduly restricts or burdens interstate commerce, it cannot be upheld. It will be seen in the Gundling case cited that the supreme court, after upholding a city ordinance regulating the sale of cigarettes, stated that the power conferred on a city officer did not vest in him the arbitrary right to refuse or grant a license in violation of the fourteenth amendment of the constitution, either in regard to the clause requiring due process of law or in that requiring equal protection of the laws, and in holding that regulation of a trade or business was within the police power of the state, and within the authority of the state to determine, but the court added that their determinations would be upheld “unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law,” etc. (p. 188.)
In the Austin case, upholding the exercise of the police power, the court quoted from Yick Wo v. Hopkins, 118 U. S. 356, 373, in which it was said:
“ ‘Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in, similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.’ ” (p. 350.)
While the police power is wide in its scope and gives the legislature broad power to enact laws to promote the health, morals, security and welfare of the people, and further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislation or that which is in violation of the' fundamental law. The statute in question supplanted and repealed one prohibiting the sale and disposal of cigarettes, and which had been theretofore held valid. The later act authorized the sale of these except as to minors. This act treats cigarettes as articles of commerce, and it is essentially an act to raise revenue. It is competent for the legislature to include in an act provisions for regulation as well as for raising revenue, if its provisions do not violate constitutional limitations. It is readily apparent that the dominant theory of the act is to provide revenue. It is stated, and seems to be conceded, that the revenue raised under the act will amount to at least one million dollars each year. Having legalized the sale of cigarettes, thus making them articles of commerce, can the legislature restrict the making of contracts for advertising, which operates unequally as between publishers engaged in that business. It is conceded that the act is ineffective as against publishers outside of the state, whose newspapers and publications have a much larger circulation than those issued by the plaintiffs and other publishers within the state. Because of this condition it may well be doubted whether the restriction as to advertising can have any appreciable effect in preventing sales to minors where outside publications, which go into almost every household, carry full page advertisements of cigarettes, or whether the restriction on local publishers contributes in any substantial degree towards accomplishing the avowed purpose of promoting the public welfare. A statute restraining the liberties and property rights of citizens cannot be upheld unless it has a real relation to its object and the regulation reasonably adapted to accomplish the end sought to be attained. (Marbury v. Madison, 1 Cranch, 49.) Whether the act is open to that objection need not be determined, but it is clear that in its operation it is unequal and obviously discriminatory. Here we have an act which in its operation permits publishers on one side of the state line to contract for advertising articles of commerce, but prohibits publishers on the other side of the state line from making like contracts. We think it offends the constitutional provision that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” (U. S. Const. Art. 4, § 2.) It is obnoxious also to the due process clause of the fourteenth amendment of that constitution, and to the other clause that no state shall deny any person within its jurisdiction the equal protection of the law. In respect to unjust discrimination we held in the recent cause of In re Irish, 122 Kan. 33, 250 Pac. 1056, that a restriction imposed on a nonresident dealer of a city which was not applied to a resident dealer engaged in the same kind of business, was obviously discriminatory and void, and that if a greater burden is laid upon one than upon others in the same calling and condition it is repugnant to the federal constitution. (See, also, In re Jarvis, 66 Kan. 329, 71 Pac. 576; Vietti v. Fuel Co., 109 Kan. 179, 197 Pac. 881; Barbier v. Connolly, 113 U. S. 27; Lochner v. Neto York, 198 U. S. 45; Chicago, B. & Quincy R. R. Co. v. McGuire, 219 U. S. 549.) Most of the cases relating to discriminations have arisen where an added and unequal burden was placed upon the nonresident party, but no reason is seen why the resident discriminated against in favor of the nonresident is not entitled to complain and to have the same principle applied and should be awarded the same protection against inequality and injustice.
It is urged with apparent reason that the provision is an undue interference with interstate commerce. It appears that plaintiffs, conducting newspapers in Kansas, have a large circulation in adjoining states, and that manufacturers of cigarettes and cigarette papers, engaged in shipping their products from other states into Kansas and selling them in original packages, have solicited the plaintiffs to publish advertisements of the goods with a view of promoting the sale in Kansas and other places, and that the statute precludes them from entering into such contracts or assisting in the sale of the goods by advertisements in their newspapers.
It is insisted first by plaintiffs that under the statute the sale of cigarettes is authorized and lawful, with the exception as to minors, and must be treated as an article of commerce, and that, being manufactured in other states and transported and sold in this state, it is protected by the interstate commerce clause of the federal constitution. Advertisements of goods in interstate commerce is an aid to the sale and must be regarded as an essential part of the business. It has been held that—
“Newspapers are subjects of commerce within the meaning of the provision in the constitution of the United States relating to commerce between the states.” (Preston v. Finley, 72 Fed. 850.)
In another case the court declared that—
“Every negotiation, contract, trade and dealing between citizens of different states which contemplates and causes such importation, whether it be of goods, persons or information, is a transaction of interstate commerce.” (Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 Fed. 1, 17. See, also, W. U. Telegraph Co. v. Pendleton, 122 U. S. 347; International Textbook Co. v. Pigg, 217 U. S. 91.)
Newspapers and other media of conveying information regarding proper subjects of interstate commerce must be deemed to be engaged in such commerce. Cigarettes transported from other states sold in original packages is commerce, and contracts for advertising and the newspapers themselves carrying such information and advertisements in order to promote sales are within the protection of the commerce clause of the constitution. That question was before the supreme court of Utah where a publisher of a newspaper was prosecuted for the violation of a statute prohibiting the advertising of cigarettes and other tobacco products in newspapers. The defendant had printed such an advertisement in his newspaper, which had a circulation, in several states, and having been convicted he appealed raising the question of the validity of the statute. The court held that the articles advertised were legal subjects of commerce, that publishers of newspapers carrying advertisements of articles were engaged in interstate commerce and that prohibition of such advertising and circulation of the newspaper was beyond the power of the state to enact and constituted a violation of the commerce clause of the federal constitution. (State v. Salt Lake Tribune Publishing Co., [Utah] 249 Pac. 474.) See, also, Post Printing and Publishing Co. v. Brewster, 246 Fed. 321, and the numerous other authorities cited in the above cases.
Having reached the conclusion that section 18 of the act involved here is unconstitutional on the grounds mentioned, it is deemed unnecessary to discuss other grounds of invalidity advanced by the plaintiffs.
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